Friday, June 7, 2013

Supreme Court Revises Decision on Teva v. Pfizer

Friday, June 07, 2013
Originally featured on June 6, 2013 in an MBM Newsflash

The Supreme Court of Canada has made a decision on Pfizer’s motion regarding the Court’s earlier decision in Teva Canada Ltd. v. Pfizer Canada Inc. (2012 SCC 60). In Teva v. Pfizer, Pfizer sought an order prohibiting the Minister of Health from issuing a Notice of Compliance to Teva for its generic version of Viagra under the Patented Medicines (Notice of Compliance) Regulations.

The Supreme Court issued its decision in the case in November 2012, pronouncing that the Pfizer patent for Viagra was “invalid” and “void”. After the decision, Pfizer brought a motion for either a re-hearing or a modification of the Supreme Court decision. Pfizer argued that the Supreme Court’s decision exceeded its jurisdiction in the matter, that the case had been brought in the context of the PM(NOC) Regulations wherein the purpose of the proceeding was not determining the validity of the patent. Pfizer asked the Court to vary its invalidity decision with respect to the Viagra patent, and to limit itself to the remedy available under the PM(NOC) Regulations, i.e. dismiss the application for an order prohibiting Teva from obtaining a Notice of Compliance.

On June 4, 2013, the Supreme Court issued its decision on Pfizer’s motion. The Court has modified its earlier order in Teva v. Pfizer by removing the statements that the patent is invalid and void, and replacing them with statements to the effect that Teva has established its allegations under the PM(NOC) Regulations that Pfizer’s patent for Viagra is not valid. The Court also amended its earlier decision by specifying in the first paragraph the application brought by Pfizer (i.e. an application under PM(NOC) Regulations for an order prohibiting the Minister of Health from issuing a Notice of Compliance to Teva), and by adding to the last paragraph that the Supreme Court dismisses that application.

The implications of this modification of the Supreme Court’s earlier decision will become fully clear in the future. One notable outcome of this decision is that the Supreme Court of Canada has demonstrated it is not above reconsidering and modifying its own decisions.

By Nazanin Ghaissarnia