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ARTICLE · 22 NOVEMBER 2018

ONCA Permits Pleading Amendments Asserting Validity Of Previously Invalidated Patent Following Nexium Decision

This decision of the Ontario Court of Appeal (ONCA) arises in the context of a novel action brought by Apotex seeking damages for the delayed market entry of its generic version of Sanofi's blockbuster ramipril drug.

CanadaIntellectual Property

This decision of the Ontario Court of Appeal (ONCA) arises in the context of a novel action brought by Apotex seeking damages for the delayed market entry of its generic version of Sanofi's blockbuster ramipril drug.

Apotex's claims in this action are linked to the invalidity of Canadian Patent No. 1,341,206 (206 Patent). The 206 Patent had previously been invalidated based on the application of the "promise doctrine". In June 2017, the Supreme Court of Canada (SCC) held that the invocation of the "promise doctrine" was an error in law and abolished the doctrine once and for all in AstraZeneca Canada Inc. v. Apotex Inc. (Nexium). This decision of the ONCA reverses a lower court decision denying Sanofi's pleadings amendments, which asserted that the underlying decision invalidating the 206 Patent was based on wrong legal principles, and relied on the Nexium decision.

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