Canadian Originators Are Free To Try Again

Previous Failures In Asserting Patents Do Not Preclude Future Attempts

Having unsuccessfully asserted a patent under the previous legal framework in Canada does not preclude an originator from trying again following legislative amendments enacted in 2017, the country’s Federal Court of Appeal has ruled in a decision on Pfizer’s Nivestym filgrastim biosimilar.

Canada_Gavel
Canada's Federal Court of Appeal say new regulations allow originators to enforce patents on which they have previously lost in litigation • Source: Shutterstock

Canadian originators are not guilty of an abuse of legal process when they sue a generic or biosimilar developer for alleged infringement of a patent that has already been found to be invalid or not infringed under proceedings brought before legal changes introduced in September 2017, Canada’s Federal Court of Appeal has decided.

Pfizer had appealed against a prothonotary’s decision from October 2018 to reject its motion to dismiss as an abuse...

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