On March 15, 2018, in Genentech Inc v Amgen Canada Inc, 2018 FC 303, the Federal Court  of Canada (FC) considered a motion relating to an abuse of process motion brought by Amgen under section 6.08 of the amended PM(NOC) Regulations. This decision relates to Genentech’s motion to dismiss or stay the section 6.08 motion. 

In allowing the abuse of process motion to proceed following documentary discovery and prior to the completion of the examinations for discovery, the FC considered the defendant’s rights to bring the motion.  The FC concluded that the section 6.08 motion was not procedurally unfair to the plaintiff as it does not require a duplication of resources to proceed with discovery. Addressing the 6.08 motion will replace at least a portion of the efforts that the plaintiffs would have made in prosecuting their claims in the main action. 

Further, the FC noted that contrary to the plaintiff’s argument, it is not clear that the abuse of process motion is doomed to fail, and the defendant should be allowed to proceed.  Specifically, the FC noted “[i]f it is ultimately determined by the Court that Amgen’s motion should not have been brought, the Plaintiffs’ concerns can be addressed through a heightened award of costs.”

Finally, the FC noted that all parties will stand to benefit from efficiencies that could be gained if the section 6.08 motion is granted, as there would be no need to litigate infringement or invalidity in relation to the subject patents.

Summary By:  Robert Dewald

E-TIPS® ISSUE

2018 04 18

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