Apotex Inc. v. Glaxosmithkline Inc., 2004 FC 1035

Date: 20040723

Docket: T-482-04

Citation: 2004 FC 1035

Montréal, Quebec, July 23, 2004

Present:           RICHARD MORNEAU, ESQ., PROTHONOTARY

BETWEEN:

                                                                  APOTEX INC.

                                                                                                                                               Plaintiff

                                                                           and

                                                     GLAXOSMITHKLINE INC.,

                                                      GLAXOSMITHKLINE PLC,

                                       SMITHKLINE BEECHAM CORPORATION,

                                DOE CO. AND ALL OTHER ENTITIES UNKNOWN

                                   TO THE PLAINTIFF WHICH ARE PART OF THE

                                   GLAXOSMITHKLINE GROUP OF COMPANIES

                                                                                                                                         Defendants

                                            REASONS FOR ORDER AND ORDER

[1]                Considering the motion by the defendants Glaxosmithkline PLC (Glaxo U.K.) and Smithkline Beecham Corporation (Glaxo U.S.) under Rules 104(1)(a) and 208 of the Federal Court Rules, 1998 (the Rules) for an order declaring that said defendants are not proper and necessary parties to the action instituted herein by the plaintiff under Section 8 of the Patented Medicine (Notice of Compliance) Regulations, SOR/93-133, as amended (the Regulations), and that therefore said defendants should be struck as parties to the action;

[2]                Considering the oral and written representations submitted by all parties;

[3]                Considering that apart from the wording per se of Section 8 of the Regulations, the main and essential basis supporting the defendants Glaxo U.K. and Glaxo U.S. motion is the decision rendered by the Court on March 31, 2004 in Apotex Inc. v. Eli Lilly and Company Inc. and Eli Lilly Canada Inc., 2004 FC 502 (the Lilly U.S. decision);

[4]                Considering that the Lilly U.S. decision is presently under appeal, and considering that the undersigned does not want at this juncture to prejudge whether the Court of Appeal will maintain said decision or whether it will be swayed by the representations raised by Apotex against said decision, and especially the ones put forward by Apotex in paragraphs 48 to 50 of its written representations submitted in response to the motion at bar;

[5]                Considering in addition that the motion that led up to the Lilly U.S. decision was a motion for summary judgment whereas the motion under study here is a motion tantamount to a motion to strike the adjudication of which is the subject of a stringent test;

                                                                       ORDER

Consequently, it is hereby ordered that the defendants Glaxo U.K. and Glaxo U.S. motion is dismissed, costs in the cause.

The moving defendants shall serve and file their statement of defence within thirty (30) days of the date of this order.

The instant order does not prevent the defendants from relying in their statement of defence on the grounds raised in their motion or to move the Court again in the future if circumstances warrant it.

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-482-04

APOTEX INC.

                                                                                   Plaintiff

and

GLAXOSMITHKLINE INC.,

GLAXOSMITHKLINE PLC,

SMITHKLINE BEECHAM CORPORATION,

DOE CO. AND ALL OTHER ENTITIES UNKNOWN

TO THE PLAINTIFF WHICH ARE PART OF THE

GLAXOSMITHKLINE GROUP OF COMPANIES

                                                                            Defendants

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                       July 19, 2004

REASONS FOR ORDER:                         RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS                      July 23, 2004

APPEARANCES:

SOLICITORS OF RECORD: