Glaxosmithkline Inc. v. Pharmascience Inc., 2024 ONSC 2366


Read full decision. Summary prepared by Alan Macek:

On February 4, 2014, the parties settled their dispute pursuant to a written settlement agreement whereby Pharmascience (and associated entities) and Apotex agreed to stop selling valacyclovir. ... GSK claims that Pharmascience was required to make the stipulated payment pursuant to the Payment Clause because Teva was already in the Canadian Market as of the Withdrawal date. It also argues that the Exceptions to the Payment Clause do not apply because the Teva brand of valacyclovir continued to be sold downstream by wholesalers and distributors after the Withdrawal Date for a period of approximately 13 months. Pharmascience argues that the Payment Clause has not been triggered and/or that one of the Exceptions in the Payments Clause applies because Teva’s ex-factory sales stopped within the timelines set out in that Exception. ... In all the circumstances, taking into account the surrounding circumstances and commercial efficacy, the meaning of the formula “first and last sale of its valacyclovir product in the Canadian market” is objectively not the sale of the brand of Teva valacyclovir, no matter who makes the sale. Rather, these words objectively mean a sale of valacyclovir product made by Teva ex-factory. ... Therefore, Pharmascience’s motion is granted, and the action is dismissed.


Canadian Intellectual Property