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For the Defendants’ Eyes Only: Court Permits Filing of Confidential Statement of Claim

In Bayer vs. BGP, Justice Pentney of the Federal Court permitted the filing of a confidential Statement of Claim.

Bayer markets aflibercept under the brand name Eylea for the treatment of eye-related disorders. BGP is seeking approval to sell a biosimilar aflibercept product in Canada under the brand name Yesafili.

Pursuant to the PM (NOC) Regulations, BGP served Bayer with a Notice of Allegation. BGP also provided Bayer with portions of its submission to Health Canada for Yesafili, subject to confidentiality rules imposed by BGP under the Regulations.

The deadline for Bayer to initiate a proceeding in response to the Notice of Allegation under section 6 of the Regulations was June 16. On June 14, Bayer filed a motion for an interim confidentiality order that allowed it to file two Statements of Claim, a confidential version and a public version. In the public version, Bayer proposed to redact the identity of two defendants that it had identified on its review of the confidential BGP documents. BGP consented to Bayer’s motion.

On June 15, Justice Pentney granted the motion. The interim confidentiality order will lapse after 45 days unless any interested party brings a motion for its extension. No such motion has been brought to date.

A copy of the decision, as provided by the Court, may be found here.