Open Court Principle Means No Secret Proceedings If They Would Directly Affect A Competitor's Rights

Courts in Canada are presumed to be open and accessible to the public. Although a party's commercial interests can be protected, a court will not grant a confidentiality order if doing so would prejudicially affect a third party. A court can only cloak a proceeding in secrecy where necessary to prevent a serious risk to an important interest and the benefits of these orders outweigh the downsides.

In a recent decision governed by unusual facts, a drug product manufacturer sought a confidentiality order with the effect of preventing a non-party co-developer-turned-competitor from learning about a court proceeding that could have affected the competitor's opportunity to enforce patents against the manufacturer. The Federal Court upheld the case management judge's decision refusing to allow secret-keeping and requiring the manufacturer to provide its competitor with information about the proceeding.

Case

Innovator Company v Canada (Attorney General), 2017 FC 864 [Innovator Company]

IP Type

Patents

Summary

In Innovator Company, a pharmaceutical manufacturer ("Innovator") filed a submission for regulatory approval of a new drug product co-developed with another company ("Other Innovator"). The co-developers then became competitors, each pursuing approval for a different strength of the drug. The Minister of Health approved Other Innovator's product first and determined that Innovator's unapproved drug submission triggered the application of the Patented Medicines (Notice of Compliance) Regulations ("Linkage Regulations"). The Linkage Regulations link drug approval to patent rights, normally delaying regulatory approval of a generic product until patent disputes identified by the brand manufacturer can be resolved. This case was unusual because it did not involve a brand and a generic company—but rather co-developers—and the Minster's decision would require one co-developer (Innovator) to await drug approval until patent disputes were resolved with the other co-developer (Other Innovator).

Using the pseudonym "Innovator Company" to...