Ontario: un particulier accuse sans succès GSK d’avoir retardé l’entrée de génériques par le processus des NOC

Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326 (CanLII)

Une décision avec des tableaux intéressants qui montrent la complexité de la question des brevets / procédures NOC entourant un produit pharmaceutique (7 brevets et 6 procédures NOC)


[133]      Before completing this part of my Reasons for Decision, there is one final matter. After the argument of this case, to his credit as an officer of this court, Ms. Harris’ counsel provided me with a copy of the judgment of Justice Padova of the United States District Court, E.D. Pennsylvania, in Nichols v. SmithKline Beecham Corp. 2005 WL 950616 (E.D. Pa.). This was a class action against GSK in the United States that alleged that GSK had caused consumers to overpay for Paxil by: “stockpiling and causing patents to be listed;” violating s. 2 of the Sherman Antitrust Act; violating state antitrust and consumer protection statutes; and violating the common law. The action included a claim of sham litigation similar to the claim made in the case at bar.

[134]      Justice Padova’s judgment was to approve a settlement of the claims as fair and reasonable. In the course of making that determination, he considered the Plaintiffs’ risks of establishing liability. Justice Padova’s comments reveal that the sham litigation claim in the United States’ class action was as dubious as is the claim in the case at bar. He stated at p. 14 of his judgment:

In order to prevail on their claim that GSK’s patent infringement suits constituted sham litigation, Plaintiffs would have to demonstrate that GSK’s actions were both “objectively baseless” and “an attempt to interfere directly with the business relationships of a competitor.” …. Co-Lead Counsel recognize that they face significant hurdles in demonstrating that GSK’s actions were “objectively baseless.” Indeed, Judge Posner, who ruled inSmithKline Beecham Corp v. Apotex Corp. 247 F.Supp. 10111 (N.D.III.2003), that Apotex did not infringe on the ‘723 Patent stated in Asahi Glass Co. v. Pentech Pharm. Inc. 289 F.Supp.2d 986 (N.D.III.2003) (Posner, J.), that “[w]hether or not Pentech infringed patent 723 or other patents held by Glaxo, including patents on anhydrous forms of the paroxetine molecule, is uncertain, but there is nothing to suggest that the claim of infringement was frivolous.” Id. At 992.

[135]      I, therefore, conclude that Ms. Harris’ allegations of sham litigation are ridiculous and not capable of proof, and this provides another reason for concluding that it is plain and obvious that her claims of abuse of process, conspiracy, and waiver of tort are not viable in law. 

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