[2011] 2 F.C.R. D-17
Patents
Practice
Appeal from Federal Court decision (2010 FC 1210) agreeing with Prothonotary’s decision that impugned portions of counterclaim referring to loss incurred after period defined in Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 should be struck out—Respondents suing appellant for patent infringement; thereafter appellant filing defence, counterclaim for compensation under Regulations, s. 8—Claim for compensation including claim for damages for appellant’s permanent loss of market share—Prothonotary striking out reference to permanent loss of market share in appellant’s pleading—Federal Court ordering reinstatement of portions of counterclaim that had been struck out to extent referring to damages incurred within statutory period—Finding that Federal Court of Appeal’s decision in Apotex Inc. v. Merck & Co. Inc., 2009 FCA 187, [2010] 2 F.C.R. 389, making plain, obvious that claim for loss of permanent market share hopeless, disclosing no reasonable cause of action—Also stating that second person may claim damages resulting from loss of market share but only for losses actually incurred within period of liability defined in Regulations, s. 8; that s. 8 not providing any entitlement to damages regarding losses incurred outside period—These findings upheld by majority herein—Pleading at issue cannot be distinguished from pleading considered in Merck—Merck binding on Federal Court—Appeal dismissed—Per Sharlow J.A. (dissenting): Appellant’s allegations based on interpretation of Regulations, s. 8 that words can reasonably bear, that is consistent with purpose thereof as reflected in Regulatory Impact Analysis Statements published when Regulations first enacted in 1993, and when current version of s. 8 enacted in 1998—Damages contemplated by s. 8 intended to be analogous to undertaking party normally required to offer when seeking interlocutory injunction in ordinary commercial litigation—Not persuaded that narrow interpretation of s. 8 adopted in Merck correct or that previous case law should preclude Federal Court of Appeal from permitting interpretation of s. 8 adopted in Merck to be reconsidered in context of appellant’s claim.
Teva Canada Limited v. Sanofi-Aventis Canada Inc. (A-473-10, 2011 FCA 149, Dawson and Sharlow JJ.A., judgment dated May 2, 2011, 7 pp.