Janssen Inc. v. Apotex Inc., 2022 FC 107 (Paliperidone*)

Justice Manson - 2022-01-31

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This is a motion brought by the Defendant, Apotex, for a summary trial. ... Janssen’s position is that this matter is not appropriate for summary trial for the following reasons: i. There has not yet been full discovery; ii. There is conflicting expert evidence; and iii. The appeal of Teva Paliperidone remains pending and its outcome may answer questions of law in respect of the test for inducing infringement. ... Pursuant to Rule 216(6), I am satisfied that there are sufficient facts and evidence for the adjudication of the issue put forward by the Parties and it is an appropriate proceeding for summary trial. ... Based on the evidence, I am satisfied that Janssen has established direct infringement will occur by prescribing physicians. ... Apotex proposes that the similarity between the facts in this matter and Teva Paliperidone, should lead the Court to come to a similar conclusion: that any act of direct infringement would be a result of physician skill and judgment applied to specific patient characteristics, rather than any influence exercised by the product monograph for the APO Product. ... Based on the expert evidence as a whole, I find that Apotex’s product monograph includes recommendations to prescribers for use of the claimed dosage regimen. Janssen has shown on a balance of probabilities that Apotex’s product monograph for the APO Product will induce infringement of Janssen’s 335 Patent. ... Given the finding of infringement and the relief sought in the Statement of Claim, I hereby add the injunctive relief sought by the Plaintiffs to the Judgment. [see also 2022 FC 62 for Pharmascience summary trial motion]

Decision relates to:


Canadian Intellectual Property