Bayer Inc. v. Teva Canada Limited

Bayer Inc. v. Teva Canada Limited

The 2016 Notice to the Profession on Experimental Testing applies in the context of an action and to testing that can practically be subject to its notice requirements; testing conducted by Bayer in September and October 2017 occurred before litigation commenced and therefore the Notice did not apply to that testing, so the plaintiffs do not require leave under the Notice to lead that evidence at trial.

Citation
2019 FC 1370
Parties
Plaintiff: Bayer Inc.; Plaintiff: Bayer Intellectual Property GmbH; Defendant: Teva Canada Limited; Defendant: Apotex Inc.; Defendant: Taro Pharmaceuticals Inc.; Defendant: Sandoz Canada Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
12 May 2016
Procedural Posture
Patent Infringement Proceeding Under the Patented Medicines (notice of Compliance) Regulations (pm (noc) Regulations) / Pre Trial Rule 220(1)(b) Motion Determining Whether Leave Is Required to Admit Experimental Testing Conducted Pre Litigation
Outcome
Plaintiffs do not require leave of the Court pursuant to the 2016 Notice to lead evidence at trial of the 2017 dog testing; second question unnecessary; no costs awarded.
Legal Topics
Experimental Testing, Admissibility of Evidence, Notice to the Profession on Experimental Testing, PM (noc) Regulations, Leave to Admit Evidence
Source Language
English
Intellectual Property Patent Law Civil Procedure Evidence Regulatory Law Experimental Testing Admissibility of Evidence Notice to the Profession on Experimental Testing +2 more

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Parties

Bayer Inc.

Plaintiff

Bayer Intellectual Property GmbH

Plaintiff

Teva Canada Limited

Defendant

Apotex Inc.

Defendant

Taro Pharmaceuticals Inc.

Defendant

Sandoz Canada Inc.

Defendant

Procedural Posture

Patent Infringement Proceeding Under the Patented Medicines (notice of Compliance) Regulations (pm (noc) Regulations) / Pre Trial Rule 220(1)(b) Motion Determining Whether Leave Is Required to Admit Experimental Testing Conducted Pre Litigation

Legal Issues

  1. 1 Does the 2016 Notice to the Profession on Experimental Testing apply to testing conducted before litigation commenced?
  2. 2 Do the plaintiffs require leave of the Court under the Notice to lead evidence of the 2017 dog testing?
  3. 3 If leave required, should it be granted?

Ratio Decidendi

The 2016 Notice to the Profession on Experimental Testing applies in the context of an action and to testing that can practically be subject to its notice requirements; testing conducted by Bayer in September and October 2017 occurred before litigation commenced and therefore the Notice did not apply to that testing, so the plaintiffs do not require leave under the Notice to lead that evidence at trial.

Court Disposition

Plaintiffs do not require leave of the Court pursuant to the 2016 Notice to lead evidence at trial of the 2017 dog testing; second question unnecessary; no costs awarded.

Orders

  • The Plaintiffs do not require leave of the Court pursuant to the 2016 Notice to the Profession re Experimental Testing in order to lead evidence at trial about the 2017 dog testing.
  • In light of the conclusion on the first question, it is not necessary to answer the second question.