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Janssen prima facie in contempt of STELARA injunction

After finding that Janssen’s STELARA products infringed AbbVie’s (formerly Abbott) Canadian Patent No. 2,365,281 (see here), Justice Hughes subsequently granted a permanent injunction against Janssen (see here). Since AbbVie’s own psoriasis medication, HUMIRA, does not fall within the claims of the 281 Patent, Justice Hughes tailored an injunction allowing the sale of STELARA to existing and new patients only where it was medically necessary for the treatment of a patient’s psoriasis. Such sales were allowed so long as Janssen did not influence physicians’ decisions to initiate or continue STELARA treatment. The injunction also prohibited Janssen from promoting the use of STELARA for the treatment of psoriasis.

AbbVie’s show cause motion

Within days of the issuance of the injunction, Janssen produced a scripted statement for its STELARA salespeople to use when speaking to dermatologists. This script included the statement that “the injunction does not affect your ability to prescribe STELARA to your patients.” In the show cause motion, AbbVie claimed that Janssen had breached the injunction by proactively communicating to hundreds of physicians to influence their decisions about whether to initiate or continue using STELARA for treating psoriasis.

After a detailed review of the injunction and Abbvie’s summary of the alleged acts of contempt, Justice Brown found that Janssen had deliberately and willfully disobeyed an unambiguous Order of the Court:

[86] Paragraph 11 of Schedule “A” of the Plaintiffs’ Notice of Motion alleges that the Defendant’s detailers were instructed to and did, as discussed above, market, promote, and make representations about STELARA whether the physicians with whom they met asked about STELARA or knew about the Injunction. Prima facie such conduct was not contemplated or allowed by the Injunction in addition to being prima facie contrary to the words of the Injunction itself.

[87] In addition I am satisfied prima facie that the acts alleged in paragraphs 9, 10 and 11 of Schedule “A” of the Plaintiffs’ Notice of Motion were committed in such a way as to interfere with the administration of justice and impair the authority and dignity of the Court and that therefore a prima facie case of contempt has been committed.

Accordingly, Justice Brown ordered Janssen to appear before the Court and present any defence that it may have in respect of the alleged acts of contempt.

Aitken Klee LLP was not involved in the show cause motion but previously represented AbbVie in an interlocutory motion in this matter.

A copy of the show cause Order and Reasons, including Schedule “A” of the Plaintiff’s Notice of Motion, may be found here.