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The Canadian Patent Regime: A Complete Code

Canadian case law continues to mount against the use of the Statute of Monopolies[1] to seek damages following the invalidation of a Canadian patent.

In the recent decision of Justice Schabas in Apotex Inc. v. Eli Lilly Canada Inc2021 ONSC 1588 (“Zyprexa” decision), Apotex sought damages under the Statute of Monopolies following the invalidation of the patent at issue, claiming that they were kept out of the market, and as such, were entitled to damages.

Justice Schabas rejected such an application of the Statute of Monopolies; he found that the actions of Eli Lilly were authorized by the Patent Regime (ie. the Patent Act and the PM(NOC) Regulations), which operated as a complete code and excluded any supplementary claims under other statutes and/or at common law.

The application of this statute was rejected yet again in Apotex Inc. v. Pfizer Ireland Pharmaceuticals2021 ONSC 6345 (“Sildenafil” decision). Relying on the Zyprexa decision, Pfizer brought a motion for summary judgment seeking to dismiss the proceeding in its entirety. The Court granted Pfizer’s motion for summary judgment. Justice Diamond in Sildenafil concurred with Justice Schabas’ legal and factual analysis.

The Sildenafil decision reinforces the argument that patents subsequently found invalid do not run afoul of the Statute of Monopolies. As described by Justice Schabas in Zyprexa, patent law in Canada is “wholly statutory”. The Patent Act and its Regulations provide a complete code governing the issuance and use of patents, inclusive of available remedies when patents are infringed and when they are found to be invalid. 

[1]Statute of Monopolies, RSO 1897, c 323.



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