Canada’s Federal Court Dismissed Alexion’s Challenge to the Jurisdiction of Patented Medicine Prices Review Board

On June 23, 2016, in Alexion Pharmaceuticals Inc v Attorney General of Canada, 2016 FC 716, the Federal Court (FC) struck Alexion’s application seeking a declaratory relief that sections 80 to 86 and the words “in any proceeding under section 83” of section 87(1) of the Patent Act, (the impugned provisions) are unconstitutional and ultra vires.

In January 2015, the Patented Medicine Prices Review Board (Board) commenced proceedings against Alexion regarding excessive price of its orphan drug SOLIRIS®.  While the Board’s proceedings were under way, Alexion brought this application for the declaratory relief and an order preventing the Board from proceeding with a hearing.

The Board argued that Alexion’s application was “bereft of any chance of success” as the constitutionality of the impugned provisions had already been affirmed in multiple Canadian court decisions, including the recent Federal Court of Appeal (FCA) decision in Canada (Attorney General) v Sandoz Canada Inc., 2015 FCA 249 (Sandoz) (previously reported in the E-TIPS® Newsletter).

The FC reviewed the previous jurisprudence and noted that the FCA in Sandoz explicitly dealt with the constitutionality issue. The FC held that the doctrine of stare decisis applied in this application: the Sandoz decision must prevail.

Summary by: Meenakshi Lakhanpal