Apotex' Remedial Claims Based On Pfizer's Viagra Patent Survive Another Attack

On November 18, 2016, Justice Nordheimer of the Ontario Superior Court of Justice dismissed Pfizer's motion for leave to appeal a decision that dismissed, with two exceptions, Pfizer's motion to strike various remedial claims made by Apotex (see our prior blog post here).

Pfizer successfully asserted a patent covering sildenafil against Apotex under the PM(NOC) Regulations that prevented Apotex from marketing a generic version of Viagra. Pfizer's patent was subsequently held to be insufficient by the Supreme Court leading Apotex to commence this action for damages alleging it had been improperly kept off the market based on a patent that should never have been issued. In the underlying motion Pfizer was successful in having two of Apotex' claims struck, including its claim under the section 8 of the PM(NOC) Regulations. Pfizer was unsuccessful, however, in striking Apotex' remaining claims based on the Trade-marks Act, unjust enrichment, nuisance and conspiracy.