[2012] 2 F.C.R. D-6
Corporations
Motion under Federal Courts Rules, SOR/98-106, r. 213 for summary trial in context of patent action—ratiopharm inc., initial plaintiff, making claim for damages under Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 against Wyeth following earlier notice of compliance (NOC) proceedings taken by Wyeth against ratiopharm—ratiopharm’s competitor, Novopharm Limited, entering into licence agreement with Wyeth to sell generic version of drug at issue in present case—Novopharm changing name to Teva Canada Limited; ratiopharm, related companies subsequently amalgamating with Teva pursuant to Canada Business Corporations Act, R.S.C., 1985, c. C-44, s. 186—Since amalgamation, Teva selling both ratiopharm’s, Novopharm’s generic drugs under licence agreement with Wyeth—Main issue whether merged corporation Teva entitled to maintain ratiopharm’s s. 8 claim for damages—Equitable doctrine of election constituting dispositive argument herein—Common law doctrine of election, equitable doctrine of election distinguished—Equitable doctrine of election based on fact electing party, having obtained particular benefit from transaction, must accept all consequences flowing therefrom, including negative consequences—Evidence showing Novopharm, as licensee, making equitable election when expecting, encouraging Wyeth to commence NOC proceedings against ratiopharm to address patent infringement; benefiting from licence agreement—While ratiopharm would have valid patent claim, Novopharm would be precluded by equitable doctrine of election from asserting claim—Act, s. 186(c) providing that amalgamated corporation liable for obligations of amalgamating corporations—On basis of s. 186(c), Novopharm’s equitable election carried forward; affecting amalgamated corporation Teva, now liable for obligation of equitable election as of amalgamation date—Therefore, ratiopharm’s claim no longer enforceable by Teva—Motion granted.
Teva Canada Limited v. Wyeth LLC (T-1844-07, 2011 FC 1169, Hughes J., judgment dated November 9, 2011, 33 pp.)