Teva Canada Innovation v. Pharmascience Inc., 2019 FC 1394 (Glatiramer*)

Proth. Tabib - 2019-11-07

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Pharmascience seeks an order directing the preliminary determination of a question of law pursuant to Rule 220 of the Federal Courts Rules. The question as framed in Pharmascience’s motion materials is as follows: “Does subsection 6 (1) of the Patented Medicines (Notice of Compliance) Regulations permit first persons to pursue an action thereunder in respect of a drug against which there is no listed patent and for which no section 5 obligations are triggered?” That question is essentially the same as was framed in an earlier motion brought by Pharmascience to strike portions of Teva’s statement of claim as disclosing no reasonable cause of action, pursuant to Rule 221(1)(a). By order dated May 7, 2019 (reported at Teva Canada Innovation et al v Pharmascience Inc. 2019 FC 595), I dismissed Pharmascience’s motion. I found, inter alia, that while Pharmascience’s argument was compelling, Teva’s countervailing argument was equally arguable, such that the matter did not rise to the plain and obvious standard required to strike a pleading as disclosing no reasonable cause of action. The Federal Court of Appeal denied leave to appeal, saying that “the interpretation of s 6(1) of the Regulations is better left to the trial judge”. Pharmascience submits that the question it now proposes is a pure question of law and that given that the trial judge is already identified, it is appropriate and in the interest of justice that the question be determined preliminarily by the trial judge. For the reasons that follow, Pharmascience’s motion will be dismissed.

Decision relates to:



Canadian Intellectual Property