[2011] 3 F.C.R. D-12
Patents
Practice
Judicial review of part of Patented Medicines Prices Review Board’s decision regarding remedy granted, in accordance with Patent Act, R.S.C., 1985, c. P-4, s. 83(2), with respect to excessive prices applicant charging between 2002–2006—Board ordering that applicant offset excessive revenues earned thereby by means of payment to Her Majesty the Queen—In 2007, because applicant in competitive tender with another potential Canadian supplier, price of product at issue costing substantially less than before—Applicant claiming price reduction benefiting same customers that paid excessive prices in 2002–2006—Whether Board exceeding jurisdiction by (1) imposing penalty on applicant, (2) abusing discretion—No evidence establishing that, on balance of probabilities, customer base actually benefited from price reduction that properly compensated them for amount they paid in excess had applicant not charged excessive prices in 2002–2006—Although applicant’s prices in 2007, 2008 substantially lower than in 2006, applicant not submitting evidence establishing that such reductions different than reductions normally occurring when patented pharmaceutical product like applicant’s put to tender in competitive environment for first time—Therefore, Board’s order not to be considered punitive award—However, not possible to decipher on what basis Board discarding applicant’s argument that it had, to some degree, compensated for excessive revenues—Board’s decision ordering applicant to offset excessive revenues not meeting applicable standard—Board’s decision not reasonable because of lack of transparency, intelligibility, justification—Application allowed.
Sanofi Pasteur Limited v. Canada (Attorney General) (T-83-10, 2011 FC 859, Gauthier J., judgment dated July 12, 2011, 39 pp.)