Supreme Court of Canada denies leave to hear section 8 cases

On May 17, 2012, the Supreme Court of Canada announced its decisions not to hear appeals in three section 8 cases:

Apotex Inc. v. Nycomed Canada Inc.

Apotex Inc. v. Eli Lilly Canada Inc.

Merck Frosst Canada & Co. v. Apotex Inc.

Each of these cases addressed facets of section 8 of the Patented Medicines (Notice of Compliance) Regulations.  The Federal Court of Appeal, in the Nycomed/Lilly cases (which were heard together though not consolidated), held that disgorgement of profits was not an available remedy under section 8.  The Merck case arose out of a unique set of circumstances that required the Court to the determine which version of the PM(NOC) Regulations applied.  On the facts, the Court of Appeal held that the 1998 version applied, which resulted in Merck’s liability under section 8.

The Supreme Court of Canada’s news release can be found here.  Consistent with Supreme Court practice, the Court provided no reasons in dismissing the leave applications.

The Federal Court of Appeal decision in Lilly/Nycomed can be found here.  The Court of Appeal issued a single decision addressing both cases.

The Federal Court of Appeal decision in Merck can be found here.