Date:
20091119
Docket: A-281-09
Citation: 2009 FCA 339
Present: LAYDEN-STEVENSON
J.A.
BETWEEN:
PFIZER
LIMITED
Appellant
and
RATIOPHARM
INC.
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1]
BIOTECanada
is a not-for-profit, non-government association and represents more than 250
member companies encompassing a broad spectrum from the biotechnology sector
including agriculture, aquaculture, bioinformatics, food, healthcare research,
industrial biotechnology and renewable energy.
[2]
Eli Lilly
Canada Inc. is one of Canada’s leading innovative
research-based pharmaceutical companies. Eli Lilly and Company is one of the
world’s leading research-based pharmaceutical companies and is involved in
developing pharmaceutical products for the world.
[3]
BIOTECanada,
Eli Lilly Canada Inc. and Eli Lilly and Company (the proposed interveners), by
motion in writing, seek leave to intervene in this appeal and make joint
written and oral submissions at the hearing. They do not seek to introduce any
new evidence.
[5]
The
appellant, Pfizer Limited, in correspondence dated October 30 2009 indicates
that it supports the motion because the “proposed intervention would assist in
illuminating the issues on appeal.” The respondent, ratiopharm inc., opposes
the motion.
[6]
Leave to
intervene may be granted if each intervener has an interest in the outcome of
the litigation, has rights that may be adversely affected by the outcome and
will assist the court by bringing a perspective to the proceedings different
from that of the parties: Novopharm Limited v. Eli Lilly Canada Inc. et al.,
2009 FCA 24.
[7]
The
proposed interveners submit that in finding the '393 Patent invalid on the
basis of utility and s. 53 of the Patent Act, R.S. 1985, c. P-4 (the
Act), Hughes J. significantly changed established law relating to utility and
s. 53 of the Act. They contend that the change in law in respect of these two
grounds of invalidity significantly lowers the threshold needed to demonstrate
invalidity on these grounds. Further, the proposed interveners claim to have
specialized expertise in patent law and practises around the world which the
parties themselves will not be able to fully canvas. Based upon this special
expertise, the proposed interveners are in an optimal position to assist the
court and “will be able to provide the court with (sic) how the decision of
Hughes J. accords with international patent laws and practice.”
[8]
Aside from
the issue of international patent law and practice, the nature of the proposed
interveners’ interest in the appeal is jurisprudential. They have not
established that they are directly affected by the outcome of the appeal. To
the contrary, they state that they have no interest in the particular facts of
the case and no interest in the specific pharmaceutical product in dispute. A
jurisprudential interest is not sufficient to grant intervener status: Eli
Lilly Canada Inc., v. Canada (Minister of Health) (2001), 10 C.P.R. (4th)
310 (F.C.) aff’d. (2001), 11 C.P.R. (4th) 486 (F.C.A.).
[9]
As for the
issue of international patent law and practice, it is evident from the
affidavits filed in support of the motion that this submission requires the
interveners to demonstrate a difference between patentability requirements in Canada and foreign countries.
Evidence on the state of foreign law would be necessary. Yet, the proposed
interveners explicitly state that they do not seek to introduce evidence on the
appeal. Therefore, the prospect of adding a new perspective to the dispute is seriously
undermined.
[10]
Finally, I
am not satisfied that the proposed interveners will present the court with
submissions that are useful and different from those that Pfizer will make.
Both the issues of utility and section 53 of the Act constitute grounds of
appeal and are addressed in Pfizer’s memorandum of fact and law. The proposed
interveners have not demonstrated that they will provide a relevant and useful
point of view which Pfizer will not present. Nor do they contend that the court
is unable to decide this appeal on its merits without their involvement. In
short, although they do not disclose the specific contents of their proposed
submissions, it appears that their arguments will simply bolster those made by
Pfizer.
[11]
For the
foregoing reasons, the motion will be dismissed with costs to ratiopharm inc.
“Carolyn
Layden-Stevenson”
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