Door Still Open For Competition Act Challenges To Patent Settlement Agreements

In June 2009, the Federal Court of Appeal (FCA) upheld the Federal Court of Canada's decision in the patent infringement case of Laboratoires Servier v. Apotex Inc., ([2008] F.C.J. No. 1094, aff'd [2009] FCA 222). In its decision, the Court dismissed a counterclaim by the defendant, Apotex, alleging that the settlement agreement leading to the relevant patent's issuance constituted a conspiracy to lessen competition and an offence under Canada's Competition Act. Although in this case the Court held that the defendant had failed to support its allegations with sufficient evidence, it specifically contemplated that under the right circumstances, a patent settlement agreement might amount to a conspiracy under the Competition Act.