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ARTICLE · 14 NOVEMBER 2019

Federal Court Refuses To Permit Reply Evidence On Validity Issues In Action Under The PM(NOC) Regulations

This action was scheduled to go to hearing on September 30, 2019, but was adjourned until February 3, 2020.

CanadaIntellectual Property

On a motion for leave to file reply expert reports, the Federal Court has reinforced the rule against case splitting and outlined the circumstances under which reply expert reports are permissible under the Federal Courts Rules. The Court concluded that none of the proposed reply reports put forward by Teva Canada Limited (Teva) in respect of patent validity issues were proper and dismissed the motion.

Background

This motion arose in the context of an action under subsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations, relating to the drug INVEGA SUSTENNA (paliperidone). The plaintiffs, Janssen Inc. and Janssen Pharmaceutica N.V. (Janssen) alleged that Teva will infringe Canadian Patent No. 2,655,335 (the 335 Patent). In response, Teva brought a counterclaim seeking a declaration of invalidity.

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