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PATENTS - Constitutional issues and legislation - Patent Act - Procedure - Judicial review

Tuesday, January 09, 2018 @ 11:12 AM  


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Appeal by Alexion Pharmaceuticals Inc. (Alexion) from the summary dismissal of its judicial review application, challenging the constitutionality of provisions of the Patent Act granting the Patented Medicine Prices Review Board (Board) authority to make remedial orders where it found that a patentee of an invention pertaining to a medicine was selling the medicine at an excessive price. Alexion, patentee of the breakthrough drug Soliris, indicated for the treatment for two life-threatening disorders, was found by the Board to have sold Soliris at an excessive price. Alexion did not raise the constitutional issue before the Board itself, before asking the Federal Court for a declaration that the impugned provisions of the Act improperly intruded into provincial jurisdiction over property and civil rights. The prothonotary who summarily dismissed Alexion's judicial review application applied stare decisis, based on the Sandoz decision, in which the Federal Court of Appeal held that control of prices for patented medicines came within the jurisdiction conferred on Parliament over patents.

HELD: Appeal dismissed. It was incumbent on Alexion to first raise the constitutional issue before the Board. Having failed to do so, Alexion was not entitled to bring the issue before the Federal Court. The Board that decided to impose sanctions on Sandoz for overpricing was differently-composed than that which could have considered Alexion’s case and might have had different insights to offer. However, whatever further insights the Board might have had on the matter, the Sandoz decision was dispositive of the constitutional issue. The Court explicitly decided in Sandoz that the price control scheme as a whole was constitutional and the prothonotary was correct in finding that the Sandoz decision applied to Alexion.

Alexion Pharmaceuticals Inc. v. Canada (Attorney General), [2017] F.C.J. No. 1216, Federal Court of Appeal, D.W. Stratas, J.M. Woods and J.B. Laskin JJ.A., December 7, 2017. Digest No. TLD-January82018004