Federal Court

Industrial and Intellectual Property


Prothonotary’s conclusion that strong possibility of infringement was present could not be characterized as an error

Defendant brought motion to appeal order of prothonotary in which she declined to strike out plaintiffs’ statement of claim in its entirety. Statement of claim alleged infringement of patent. Although prothonotary struck some of plaintiffs’ pleadings, she allowed action to continue on basis of amended allegations of likely future infringement. Defendant contended that aspect of decision was made in error and that action should be dismissed in its entirety. Motion dismissed. Defendant had declared clear intention to come to market with its competing version of plaintiffs’ product as soon as it could obtain notice of compliance. That could occur if court invalidated patent following impeachment trial. Prothonotary drew inference that defendant’s abbreviated new drug submission had been approved by Minister and was on patent hold. That inference was unassailable. Conclusion that strong possibility of infringement was present could not be characterized as error, let alone palpable and overriding error.

Gilead Sciences, Inc. v. Teva Canada Ltd. (Mar. 21, 2016, F.C., R.L. Barnes J., T-1888-15) 264 A.C.W.S. (3d) 1015.

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