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10 July 2019
The Supreme Court of Canada has denied Apotex leave to appeal in two recent cases regarding ramipril and cefaclor.
As previously reported, Apotex sought leave to appeal a decision of the Ontario Court of Appeal(1) permitting Sanofi and Schering to amend their defences to claims under the Ontario Statute of Monopolies, the UK Statute of Monopolies and the Trademarks Act (for further details please see "Apotex seeks leave to appeal ramipril pleadings amendment decision"). Apotex's claims relied on Sanofi-Aventis Canada v Apotex Inc(2) (the 'invalidity decision'), which found certain claims of Canadian Patent 1,341,206 invalid on the basis of the promise doctrine. The Ontario Court of Appeal permitted Sanofi and Schering to plead that AstraZeneca Canada Inc v Apotex Inc(3) – which rejected the promise doctrine as "unsound" – rendered the invalidity decision suspect. On 16 May 2019 the Supreme Court denied Apotex's application for leave to appeal.(4)
As previously reported, Apotex sought leave to appeal a decision of the Federal Court of Appeal(5) relating to damages awarded to Eli Lilly in respect of Apotex's infringement of process patents relating to cefaclor (for further details please see "Apotex seeks leave from Supreme Court of Canada in cefaclor damages action"). The Federal Court of Appeal concluded that a non-infringing alternative defence was not available to Apotex. On 23 May 2019 the Supreme Court denied Apotex's application for leave to appeal.(6)
For further information on this topic please contact Brandon Heard at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (firstname.lastname@example.org). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
(1) 2018 ONCA 890.
(2) 2009 FC 676.
(3) 2017 SCC 36.
(4) Case 38471.
(5) 2018 FCA 217.
(6) Case 38485.
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