[2017] 4 F.C.R. D-1
Patents
Practice
Motion by defendant seeking to amend its Fresh as Amended Responding Statement of Issues in proceedings herein by adding new non-infringing alternative (NIA) — Underlying proceeding patent infringement action wherein liability determination rendered in favour of plaintiffs — Quantification phase presently being tried — Proposed amendment positing that after expiry of plaintiff AstraZeneca’s U.S. patent, defendant could have employed its Canadian-developed formulation in U.S. provided the product came from jurisdiction outside of Canada — Defendant having to establish that it “could have and would have” obtained its approved formulation from non-infringing source for sale into U.S. market for relevant period — Plaintiff’s principal concern was that it made its election claiming profits on strength of defendant’s pleaded NIA defence — Decision in Janssen Inc. v. Abbvie Corporation, 2014 FCA 242 not displacing older authorities which place considerable weight on timing of motion to amend, disruption to legitimate expectations of responding party — Complications arising from defendant’s failure to raise present NIA issue in timely way too profound to be remedied by monetary relief — Not incumbent on plaintiff to lead evidence in proof of prejudicial effects of amendments — Court should not infer absence of irreversible prejudice — Court herein having informed appreciation of impact that amendment will have on plaintiff — Defendant’s NIA presenting materially different theory than those already presented — Permitting this amendment would renew fight on entirely different front — Secondary consideration matter of judicial efficiency, management of increasingly scarce judicial resources — Motion dismissed.
AstraZeneca Canada Inc. v. Apotex Inc. (T-1409-04, T-1890-11, 2017 FC 378, Barnes J., order dated April 19, 2017, 12 pp.)