Decision

Merck Sharp & Dohme Corp. v. Sandoz Canada Inc., 2020 FC 1180 (Sitagliptin*)

Justice Southcott - 2020-12-22

Read full decision. Automatically generated summary:

Each Defendant has brought a motion in the action to which it is a party, seeking an order for summary judgment under Rule 215 of the Rules or, in the alternative, an order striking out the Statement of Claim in that action under Rule 221. These motions are based on the Defendants’ position that s 8.2 of the PM(NOC) Regulations, made under the Patent Act, imposes a limitation period and that the within actions were commenced after expiry of this period. ... This case presents circumstances where it is appropriate to grant summary judgment on the issue of statutory interpretation raised by the parties. I agree with the Plaintiffs’ argument, that s 8.2 of the Regulations does not impose a limitation period applicable to actions commenced thereunder. My Judgment will therefore dismiss the Defendants’ limitation period defence in each action. ... I accept that the legislative purpose of s 8.2 is the removal of previously existing barriers to quia timet actions, so as to facilitate legal consideration of unlisted patents and thereby address uncertainty resulting from the risks associated with such patents. However, this purpose does not require the elimination of such uncertainty within any particular timeframe, as no interpretation of s 8.2 can eliminate the uncertainty that the potential for post-launch litigation of unlisted patents will continue to present.

Decision relates to:

  • T-670-20 - MERCK SHARP & DOHME CORP, ET AL v. SANDOZ CANADA INC.
  • T-673-20 - MERCK SHARP & DOHME CORP. ET AL v. PHARMASCIENCE INC.

 

Canadian Intellectual Property