Portions Of Apotex's Requested Relief For Being Kept Off The Viagra® Market Struck

In an Aug. 8, 2016 Ontario Superior Court of Justice decision Lederman J. ruled on a motion brought by the defendant Pfizer seeking to strike claims to multiple forms of relief sought by the plaintiff Apotex. Apotex pled that it was entitled to various relief by virtue of being kept off of the Viagra® market by reason of Pfizer's ultimately invalid "446 Patent".

Background

Litigation between Apotex and Pfizer concerning Pfizer's '446 Patent (listed on the Patent Register against Viagra®) was first adjudicated in 2007 (the "2007 Decision"). In this case Apotex unsuccessfully alleged invalidity of the '446 Patent in a proceeding under the Patented Medicines (Notice of Compliance) Regulations (the "Regulations").1 Following its loss, Apotex commenced an action to impeach the 446 Patent in May 2009 (the "Apotex Action").

In separate and later proceedings under the Regulations Teva alleged that the '446 Patent was invalid on grounds different to those alleged by Apotex in the 2007 Decision. Teva was unsuccessful at Federal Court and the Federal Court of Appeal, but succeeded before the Supreme Court of Canada in 2012 (the "SCC Decision").2 Shortly after the SCC Decision, Apotex brought a successful claim for summary judgment in the Apotex Action on the basis that there was no genuine issue for trial following the SCC Decision.3 This summary judgment decision in the Apotex Action declared the 446 Patent invalid.

Apotex now seeks relief in the Ontario Court for purported harm in being kept off of the market by virtue of the invalid 446 Patent. Apotex's relief is sought on the basis of: a) section 8 of the Regulations; b)...