In July this year, Servier Canada secured a victory over the largest Canadian-owned pharmaceutical company, Apotex, which Servier claimed had infringed its Canadian patent, number 1,341,196 (the ’196 patent) for the hypertension drug, perindopril.
Servier claimed that Apotex had been infringing its patent since 2006 by manufacturing and selling a generic version of the drug, and that it also had induced other parties to infringe the patent. Apotex filed counterclaims against Servier, arguing that the ‘196 patent was invalid and that Servier violated the Canadian Competition Act.
Madam Justice Snider of the Canadian Federal Court denied Apotex’s counterclaims and found in favour of Servier, issuing a permanent injunction against the generic product.
Apotex has now filed a notice of appeal asserting more than 60 errors made by the trial judge and requesting that “paragraphs 2 to 9 of the Judgment of Madam Justice Snider be set aside and the Respondents’ (collectively ‘Servier’) action dismissed, and the relief sought in the Appellants’ counterclaim be granted, with costs to the Appellants”.
Requests for comment were not returned by Apotex or its counsel, Nando De Luca of Goodmans, before going to press.
The case is likely to be heard before the Canadian Federal Court of Appeal by early spring 2009.
In addition to being the first patent case in which competition claims were asserted before a Canadian court, Ogilvy Renault attorneys Dan Artola and Judith Robinson, who acted for Servier, said that the relatively short period of time in which the case was decided could have major implications for patent cases going forward.
“The trial was less than two years,” said Artola. “That’s very, very fast, especially for a case of this complexity.”
Servier originally requested an interlocutory injunction, which was denied. However, in part because of the global scale on which Apotex was selling the allegedly infringing drug, the court agreed to fast-track the case.
“The court set down a rather strict schedule and made it clear to the parties that there would be no changes,” said Robinson. Artola added: “I think this was a very innovative approach and we’re of course thrilled as plaintiff’s counsel that the court could adjust in this way.”
Canada’s Federal Court has been engaged in both formal and informal discussions as to how to speed up patent trials for some time. Artola and Robinson said that the model used in Servier v Apotex is now being implemented in other patent cases.
Robinson said: “There are a couple of other cases queued up right now that are also pushing through, and we’re very optimistic that this is a new wave for the future.”
