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PATENTS - Procedure - Parties - Adding or substituting - Pleadings

Thursday, May 02, 2019 @ 8:43 AM  


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Motion by the plaintiffs for leave to join Teva Pharmaceuticals and three other corporations as additional defendants and for leave to amend their statement of claim to plead additional facts concerning bringing Herzuma to market in Canada. The plaintiffs brought their action pursuant to s. 6(1) of the Patented Medicines (Notice of Compliance) Regulations. The defendant Celltrion had filed the new drug submission prior to entering a partnership with the proposed additional defendants to commercialize Herzuma in Canada.

HELD: Motion allowed in part. The Regulations did not permit an action to be brought against a non-second person. On a plain reading, it created a statutory cause of action against a second person only. Allowing section 6 actions to be brought against a potential endless list of defendants would make it difficult, if not impossible, to complete the actions within the required 24 month period. The proposed allegations against the additional defendants failed to meet the requirement of pleading sufficient material facts that if proven would enable the court to make a finding that Celltrion was an agent, acting as a nominal second person, directed and controlled by the additional defendants. The motion to add the additional defendants was dismissed. The proposed pleading amendments met the minimum level of sufficient material facts to support a cause of action against the existing defendants and were allowed.

Genentech, Inc. v. Celltrion Healthcare Co., [2019] F.C.J. No. 342, Federal Court, M. Aylen, Prothonotary, March 11, 2019. Digest No. TLD-April292019010