Justice Phelan - 2017-11-09
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This is the judicial review of a decision by the Patented Medicine Prices Review Board Panel in which the Board found that it had jurisdiction over a medicine (Differin) which was no longer the subject of its own patent. As a consequence, Galderma was required to file pricing information in respect of Differin. ... The parties agreed that the question of whether the invention claimed and described in the 237 Patent “pertained” to Differin 0.1 was the substantial issue before the Board and the reasonableness of the Board’s decision is the substantial issue in this judicial review. ... While the Board goes on to discuss a “holistic evaluation” of the various factors, which is potentially a reasonable approach, the reference to a discretionary exercise is not consistent with section 79(2) or the reporting obligations in section 80. It was unreasonable (and irrelevant) to conclude that, on the face of the 237 Patent, it pertained to Differin because the patent is capable of being used for Differin. The Board does not explain how the 237 Patent for 0.3% adapalene can be used for a medicine with 0.1% adapalene. With respect, the Board misapprehended the question it was to address and engaged in an unreasonable analysis of the issue before it.
Decision relates to:
- T-83-17 - GALDERMA CANADA INC. v. PATENTED MEDICINE PRICES REVIEW BOARD ET AL