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04 July 2018
On 27 February 2017 the Ontario Superior Court of Justice dismissed Abbott and Takeda's motion for summary judgment in an action brought by Apotex under Section 8 of the Patented Medicines (Notice of Compliance) Regulations (for further details please see "Ontario Superior Court dismisses summary judgment motion in Lansoprazole Section 8 Claim"). The action concerned lansoprazole, the active ingredient in Apotex's Apo-Lansoprazole and Abbott's Prevacid.
On 5 April 2018 the Ontario Court of Appeal dismissed Abbott and Takeda's appeal.(1) The appellants argued that Apo-Lansoprazole could not and would not have received regulatory approval in April 2007, and that Apotex was not entitled to damages. The Ontario Court of Appeal disagreed, concluding that the motions judge had not erred in finding that Apo-Lansoprazole would have received approval in April 2007. This date was consistent with Apotex's expert evidence and the timing of Health Canada's letter indicating that Apo-Lansoprazole was approvable in the real world. While Health Canada subsequently reversed its position, that reversal was relevant only to the quantum of Apotex's damages and did not render the earlier letter void ab initio.
For further information on this topic please contact Brandon Heard at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (email@example.com). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
(1) Apotex Inc v Abbott Laboratories Limited, 2018 ONCA 332.
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