Alcon Canada Inc. v. Actavis Phrama Company

Alcon Canada Inc. v. Actavis Phrama Company

The Prothonotary's dismissal of the motion to strike was not clearly wrong. Under the correct standard the questioned paragraphs were not plain and obvious to be doomed because Actavis framed the allegations as seeking reduction of legal damages to reflect market effects of alleged anti-competitive conduct (not an equitable disentitlement to the patent). Section 8(5) permits consideration of conduct in assessing compensation. Accordingly the appeal is dismissed and the September 24, 2015 Order is maintained.

Citation
2015 FC 1323
Parties
Plaintiffs/defendants by Counterclaim: ALCON CANADA INC.; Plaintiffs/defendants by Counterclaim: ALCON LABORATORIES, INC.; Plaintiffs/defendants by Counterclaim: ALCON PHARMACEUTICALS LTD.; Plaintiffs/defendants by Counterclaim: ALCON RESEARCH, LTD.; Defendant/plaintiff by Counterclaim: ACTAVIS PHARMA COMPANY
Court
Federal Court
Jurisdiction
Canada
Judgment Date
27 November 2015
Procedural Posture
Patent Infringement; Appeal From Prothonotary Order Regarding Motion to Strike Pleadings and Counterclaim Under Patented Medicines (notice of Compliance) Regulations / Appeal From Prothonotary's Order (motion to Strike)
Outcome
Appeal dismissed. Prothonotary Milczynski's September 24, 2015 Order maintained. Costs awarded to Actavis.
Legal Topics
Inequitable Conduct, Motion to Strike Pleadings, Standard of Review for Prothonotary Orders, Damages Assessment, Section 8 Pm(noc) Regulations
Source Language
English
Patent Law Competition Law Regulatory Law Civil Procedure Inequitable Conduct Motion to Strike Pleadings Standard of Review for Prothonotary Orders Damages Assessment +1 more

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Parties

ALCON CANADA INC.

Plaintiffs/defendants by Counterclaim

ALCON LABORATORIES, INC.

Plaintiffs/defendants by Counterclaim

ALCON PHARMACEUTICALS LTD.

Plaintiffs/defendants by Counterclaim

ALCON RESEARCH, LTD.

Plaintiffs/defendants by Counterclaim

ACTAVIS PHARMA COMPANY

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement; Appeal From Prothonotary Order Regarding Motion to Strike Pleadings and Counterclaim Under Patented Medicines (notice of Compliance) Regulations / Appeal From Prothonotary's Order (motion to Strike)

Legal Issues

  1. 1 What standard of review applies to a prothonotary's discretionary order refusing to strike pleadings
  2. 2 Whether the prothonotary erred in refusing to strike paragraphs alleging anti-competitive behaviour/inequitable conduct
  3. 3 Whether allegations of inequitable conduct can disentitle a party to legal damages or require reduction in damages

Ratio Decidendi

The Prothonotary's dismissal of the motion to strike was not clearly wrong. Under the correct standard the questioned paragraphs were not plain and obvious to be doomed because Actavis framed the allegations as seeking reduction of legal damages to reflect market effects of alleged anti-competitive conduct (not an equitable disentitlement to the patent). Section 8(5) permits consideration of conduct in assessing compensation. Accordingly the appeal is dismissed and the September 24, 2015 Order is maintained.

Court Disposition

Appeal dismissed. Prothonotary Milczynski's September 24, 2015 Order maintained. Costs awarded to Actavis.

Orders

  • Appeal dismissed; Prothonotary Milczynski's September 24, 2015 Order is maintained; costs of the appeal awarded to Actavis Pharma Company.