Federal Court

Industrial and Intellectual Property

Applicant did not hold any patents and did not enjoy special patent rights

Applicant manufactured generic pharmaceuticals and was wholly owned subsidiary of company that owned patents. Board found applicant came within definition of “patentee” under Patent Act (Can.), and was subject to board oversight in respect of patented medicines and obligated to comply with Act and Regulations and file information that would allow board to determine whether it was charging excessive prices for medicines. Application for judicial review of board’s decision. Application granted. Relevant provisions were enacted out of concern patent holders could take undue advantage of monopolies to detriment of consumers. Applicant did not hold any patents and did not enjoy special patent rights. Applicant only entered market with parent’s authority once parent had already lost its exclusivity so did not enjoy monopoly. Board failed to consider French version of Act defined patentee narrowly and close to rights of patent holder. Constitutionality of legislation depended on close connection to patent protection, which fell under Federal jurisdiction, and potential undue exploitation by monopolies. Considering all facts, board’s conclusion was unreasonable. Amendments to Act that gave board control over prices of patented medicine did not alter basic purpose of legislation or expand board’s mandate so provisions themselves remained constitutional. Matter remitted back with direction board find applicant was not patentee.

Sandoz Canada Inc. v. Canada (Attorney General) (May. 27, 2014, F.C., James W. O’Reilly J., File No. T-1616-12) 241 A.C.W.S. (3d) 107.

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