Pharmascience Inc. v. Pfizer Canada ULC, 2019 FC 1272 (Pregabalin*)


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Since 2004, the Defendant, Pfizer, has held a patent for pregabalin, a pain medication sold under the brand name LYRICA. The plaintiff, Pharmascience, received a NOC in 2013 allowing it to market a generic version of pregabalin, PMS-pregabalin. Pharmascience had originally attempted to enter the pregabalin market in 2011 but was prevented from doing so when Pfizer sought an order under the Regulations prohibiting the Minister of Health from issuing Pharmascience an NOC. Pfizer failed in its attempt to obtain that order. Pharmascience then began this action for damages against Pfizer for the sales it allegedly lost during the period of time when it was kept off the market. ... Pfizer sought to amend its statement of defence in respect of Pharmascience’s ability to supply the market with pregabalin. ... It requested an order to that effect from Prothonotary Kevin Aalto, who denied it. Prothonotary Aalto concluded that the requested amendments amounted to an abuse of process because the question of whether there was a sufficient amount of API to supply the Canadian market had already been decided affirmatively by Justice Michael Phelan in Teva Canada Limited v Pfizer Canada Inc, 2017 FC 333. ... As I see it, the conclusion Justice Phelan reached about Teva cannot be superimposed on this case. Pfizer’s defence and proposed amendments relate to a factual issue that is particular to this action. The finding made by Justice Phelan in the Teva action, which involved different parties and witnesses, cannot simply be imported into this proceeding.

Decision relates to:


Canadian Intellectual Property