Apotex v. Schering Corporation, 2017 ONSC 903


Read full decision. Summary prepared by Alan Macek:

"More than six years ago, the plaintiff began this claim against the defendants alleging what is clearly a novel cause of action notwithstanding that the claim is framed as falling under a statute that is only slightly younger than the works of William Shakespeare. The case languished at the pleadings stage for almost six years while the parties worked their way through a number of legal challenges. The sums involved in this litigation are potentially staggering and all parties have lavished upon this litigation all of the means necessary to pursue or defend their positions vigorously." On this motion, the defendants sought to plead that they are not "estopped or otherwise precluded" from arguing that Apotex cannot rely on a 2009 decision of the Federal Court declaring the '206 patent invalid, in view of the SCC's decision in AstraZeneca in 2017. The motion was dismissed, with the Court writing, "It is possible that the Federal Court might have decided the question of the validity of the defendant’s patent differently in the light of AstraZeneca. It is possible that it might have reached the same decision. It is possible that different evidence would have been led or issues pursued. Allowing the proposed amendments would inevitably require the entire re-litigation of an issue that has been finally decided by a court of competent jurisdiction. That is something that our legal system quite rightly forbids."


Canadian Intellectual Property