Law Times

November 26, 2018

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Page 2 November 26, 2018 • Law Times is wrong; I understand the deci- sion. "But it is not the sort of de- cision that lends finality. And that's a problem throughout the patent system, that there seems to be disappointingly little fi- nality. "This is a new version of the endless game that's played around the [validation] of pat- ents. I never even thought this could happen, but there you have it." Attaran says that while the case was unusual, it might lead to other similar decisions be- cause pharmaceutical compa- nies such as Apotex frequently find themselves in court. "Patent litigation is in my thinking a pretty ugly part of the legal system," says Attaran. "It's always terribly overwrought litigation. Both sides have enor- mously deep pockets when they are pharmaceutical companies, they are not willing to let issues rest and here you have the court saying, 'Indeed, maybe we won't let the issue rest,' and that is trou- bling to me." Still, Gaikis says the outcome of the patent 206 motion is dif- ferent than trying to reopen or set aside prior decisions. "There is this notion of final- ity of the law. If two parties have fought it out and one has won, then it's over," Gaikis says. "There are very limited cir- cumstances that allow one to re-open that. Our case is not that kind of a case. We are defend- ing a new claim that Apotex is making and this litigation in the Ontario court is not over yet. Apotex wants to point to some- thing that happened in the Fed- eral Court to support its position in the Ontario case, and we are simply saying, 'Well, whatever happened in the Federal Court, that is tainted as confirmed by the Supreme Court of Canada,' and the Ontario Court of Ap- peal has agreed that we are al- lowed to make that pleading and argue that position." Goodmans LLP, which rep- resented Apotex, and Gowling WLG, which represented Scher- ing, declined to comment. Noel Courage, a partner at Bereskin & Parr LLP, says the elimination of the promise doc- trine is still very important to patent litigation. "The Supreme Court said the promise doctrine is dead — that was something that about 10 years ago generic companies started grabbing on to," he says. "So, for the Supreme Court of Canada to say this was a line of folly — it takes a lot of the pres- sure off the people that go out and develop patents every day." LT Supreme Court decision involv- ing Apotex, AstraZeneca Can- ada Inc. v. Apotex Inc., 2017 SCC 36, [2017] 1 S.C.R. 942, altered the state of play in Cana- dian patent litigation. That decision, which in- volved the acid ref lux drug Nexium, found the promise doctrine was "not the correct approach," "unsound" and "not good law." That Supreme Court decision involving AstraZeneca specifi- cally cites some of Apotex's dis- putes with Sanofi, says Gaikis, who also acted in the Supreme Court case. The appellants, including Schering and Sanofi-Aventis, sought leave to amend their de- fence against Apotex to include the argument that the decision to invalidate patent 206 "would not have been made but for the ap- plication of the now-invalidated promise doctrine," wrote motion judge Dunphy in February, when he released the initial decision on the motion. Dunphy refused leave for the amendments and dismissed the motion, saying that "allow- ing the proposed amendments would inevitably require the en- tire re-litigation of an issue" that was already decided. Nordheimer, however, al- lowed the appeal in November, giving Sanofi and Schering the right to seek to amend their ar- guments and ordered Apotex to pay costs of $20,000 to Schering and $20,000 to Sanofi. In doing so, Nordheimer went against Dunphy and also departed from the outcome of a similar case in the Federal Court of Appeal, Eli Lilly Canada Inc. v. Teva Can- ada Ltd., 2018 FCA 53. The legal issues that left Nord- heimer and the Court of Appeal panel at odds with Dunphy were the principle of res judicata and the doctrine of issue estoppel, which deal with whether the same question had been previously de- cided, whether the judicial deci- sion was final and whether the parties to the judicial decision were the same as before, Nord- heimer wrote. "It's an important decision with respect to the jurisprudence generally because there are not many cases that deal with the circumstances under which an estoppel may not be applied by a court," Gaikis says. "It's kind of unusual because it is a fairly rare circumstance when something like this hap- pens, particularly where the change of law has been at the level of the Supreme Court of Canada. The highest court in the land has spoken." But Nordheimer's decision to treat the case as a special cir- cumstance leaves a disappoint- ing lack of finality around an already messy area of patent law, says Amir Attaran, a professor in the faculties of law and medi- cine at the University of Ottawa. "I thought the promise doc- trine, which was an absolute mess in Canadian patent law, had been put to bed and we would never hear from it again," says Attaran. "I'm not saying the decision "Given the fact that nobody wants to see the centres close, we are cautiously optimistic about the outcome," Burns says. The Toronto Lawyers As- sociation provided $35,000 to Pro Bono Ontario, after doing a "deep dive" into financial state- ments for due diligence at a Nov. 21 meeting, according to presi- dent Dirk Derstine of Derstine Penman and Associates. The donation, a one-time stopgap to help the centres stay af loat and find sustainable funding, was inspired in part by conversations with judges who said the centres were helpful for self-represented litigants who otherwise would take up court resources, says Derstine. Raj Sharda, a bencher who practises at Sharda Law Office in Brampton, Ont., says he would support a contribution from the LSO to Pro Bono Ontario matching the funds that PBO has raised from private donors. "My sense is that it might be prudent to match just this once and then put it before the mem- bership — put it on the ballot and let the members decide," he says. Rocco Galati, a bencher and Toronto-based constitutional lawyer and sole practitioner, says he is advocating a minimum contribution of $25 per year from members of the profession to meet the needs of Pro Bono Ontario. Separately, Galati says, the provincial and federal gov- ernments also have a role to play in promoting access to justice through legal aid funding. "I think the law society should take the government to task on legal aid" to improve funding, Galati says. LT NEWS Prudent 'to match just this once' Continued from page 1 Continued from page 1 Case centres on 'promise doctrine' struck down last year LSUC_LT_Nov26_18.indd 1 2018-11-22 3:26 PM Pro Bono Ontario by the numbers 2017 Clients in 2017: 25,412 Revenue: $1.65 million Expenses: $1.6 million Law Foundation of Ontario grant: $800,000 PBO's revenue from Legal Aid Ontario: $300,0000 PBO's revenue from London Children's Health Founda- tion: $75,195 PBO's revenue from Law So- ciety of Ontario: $50,000 PBO's revenue from SickKids Foundation: $42,391 Donations and fundraising revenue: $161,669 Salaries and benefits expens- es: $1.1 million Rent in 2017: $131,060 Free legal advice hotline: $130,025 Office and general expenses: $67,976 Lease commitment for 2018 to 2021: $353,796 Source: 2017 Financial Statement

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