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ARTICLE · 31 OCTOBER 2011

Intellectual Property Weekly Abstracts Alert - Week of October 24, 2011

Borden Ladner Gervais LLP
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This is an appeal of an Order of the Case Management Prothonotary, denying leave to Shire to amend its Statement of Defence to plead infringement as a Defence and Counterclaim.

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Edited by Chantal Saunders and Beverley Moore

Amendment to Add Defence of Patent

Infringement Denied

Apotex Inc. v. Shire Canada inc.

Drug: ALERTEC modafinil

This is an appeal of an Order of the Case Management Prothonotary, denying leave to Shire to amend its Statement of Defence to plead infringement as a Defence and Counterclaim. The Court considered the appropriate standard of review and concluded that the decision should be reviewed de novo because the proposed amendment adds a new defence and is therefore a question vital to the final issue in the case.

The Court noted that Shire had a heavier burden in respect of making this amendment as it would lead to a radical change in the nature of the questions to be considered. The Court concluded that the proposed amendment would lead to significant delays and the inability to have the action dealt with expeditiously, which could not be remedied with costs. Accordingly the Court refused

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