As previously reported, the Ontario Court of Appeal granted Sanofi and Schering leave to amend their defences to plead the Supreme Court of Canada's decision in AstraZeneca Canada Inc v Apotex Inc (for further details please see "Court allows Sanofi and Schering to plead that Federal Court ramipril patent invalidity decision was flawed").(1)
In the underlying action, Apotex relied on the invalidity decision in Sanofi-Aventis Canada v Apotex Inc as a central element of its novel claims under the OntarioStatute of Monopolies, UK Statute of Monopolies and Trademarks Act.(2)
The invalidity decision found certain claims of Canadian Patent 1,341,206 invalid based on the promise doctrine, which was subsequently rejected as unsound in AstraZeneca. The court of appeal concluded that depriving Sanofi and Schering of the opportunity to argue that the invalidity decision was suspect would be "fundamentally unfair". On 7 January 2019 Apotex applied for leave to appeal to the Supreme Court of Canada.(3)
For further information on this topic please contact Brandon Heard at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
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