Sandoz seeks leave to appeal FCA decision finding authorized generics within PMPRB’s jurisdiction

On January 5, 2016, Sandoz Canada Inc (Sandoz) sought leave to appeal a decision of the Canadian Federal Court of Appeal (FCA) finding that authorized generics were within the jurisdiction of the Patented Medicines Prices and Review Board (PMPRB) (previously reported in E-TIPS® newsletter).  On February 4, 2016, Alexion Pharmaceuticals Inc filed a motion to intervene.  Sandoz had previously requested the FCA reconsider its judgment, which request was denied on January 8, 2016 (previously reported in E-TIPS® newsletter).

      Sandoz Canada Inc v Attorney General of Canada, SCC Case No. 36798

 

Apotex denied leave to appeal ONCA decision striking claim for unjust enrichment in atomoxetine section 8 action

On January 14, 2016, the Supreme Court of Canada denied Apotex Inc (Apotex) leave to appeal an Ontario Court of Appeal (ONCA) decision upholding a Divisional Court’s decision striking Apotex’s unjust enrichment claim against Eli Lilly and Company and Eli Lilly Canada Inc (together, Lilly) following litigation under the Patented Medicines (Notice of Compliance) Regulations (the Regulations).

As reported previously in E-TIPS® newsletter, Apotex sought disgorgement of the profits made by Lilly on sales of its ADHD drug STRATERRA® (atomoxetine HCl) over and above Apotex’s damages claim under section 8 of the Regulations.  The ONCA held that Apotex’s claim could not succeed because it could not establish the “corresponding deprivation” element of the unjust enrichment test, stating that “Apotex was never deprived of the portion of Lilly’s revenues represented by its monopolistic profits because Apotex would never have earned those profits.”

      Apotex Inc v Eli Lilly and Company, SCC Case No. 36538

E-TIPS® ISSUE

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