Decision

Janssen Inc. v. Pharmascience Inc., 2022 FC 62 (Paliperidone*)

Justice Manson - 2022-01-19

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This is a motion brought by the Defendant, Pharmascience, for summary trial or, alternatively, for a dismissal of the underlying action pursuant to section 6.08 of the Patented Medicines (Notice of Compliance) Regulations. ... Pharmascience submits that this matter should be determined by way of summary trial because the PMS Product is missing an essential element of every claim of the 335 Patent – and, thus, will not infringe or induce infringement. This argument relies on Teva Paliperidone (see 2020 FC 593), which, as stated above, is currently before the Federal Court of Appeal. ... Therefore, while on a motion for summary trial, the burden is on the moving party to demonstrate that a summary trial is appropriate, once the onus of the merits of the matter, in terms of either infringement or validity, are before the Court for determination, the burden and onus of proof of the underlying action applies. ... I am satisfied, on the evidence before the Court that Janssen has proven, on a balance of probabilities, that at least some prescribers of the impugned PMS product will be influenced by the PMS product monograph to induce infringement by those prescribing physicians. ... For the foregoing reasons, this motion is allowed to proceed as a summary trial. Janssen has shown on a balance of probabilities that Pharmascience’s product monograph for the PMS Product will induce infringement of Janssen’s 335 Patent. Janssen’s action is not dismissed and will proceed on the defences of alleged invalidity as pleaded only. Costs are awarded to Janssen.

Decision relates to:

 

Canadian Intellectual Property