by Junyi Chen
Immediately following the Supreme Court of Canada’s November 2012 decision finding that Pfizer’s VIAGRA use patent was invalid for failing to satisfy the disclosure requirements of the Patent Act in Teva Canada Ltd v Pfizer Canada Inc, 2012 SCC 60 (reported in the November 8, 2012 IP Update), the individual plaintiff, a purchaser of VIAGRA, filed a class action suit against Pfizer in British Columbia. The plaintiff claimed that Pfizer wrongfully obtained and relied on the VIAGRA patent, which inflated the price of the drug by delaying the introduction of competing generic versions. The plaintiff sought disgorgement of the difference between the revenue collected by Pfizer based on the actual price for VIAGRA and the price had generic sildenafil been available between January 1, 2006 and November 30, 2012. This alleged damages period approximates the period from the approvable date of Teva’s generic version to the date when Teva was successful before the Supreme Court of Canada. The members of the proposed class are all British Columbia residents who purchased VIAGRA in that time period.
The B.C. Supreme Court in Low v Pfizer Canada Inc, 2014 BCSC 1469 considered whether the plaintiff’s claim discloses a cause of action for the purposes of certification of the class action. The plaintiff pleaded three causes of action:
- unlawful interference with economic relations;
- waiver of tort; and
- unjust enrichment.
Justice Smith concluded that the Patent Act and the Patented Medicines (Notice of Compliance) Regulations (“NOC Regulations”) do not create a right of action for consumers, but that it is not plain and obvious that the statute is a complete bar to an action by the plaintiff on other grounds. Justice Smith determined that the plaintiff’s claim discloses causes of action for (1) unlawful interference with economic relations and (2) unjust enrichment, to the extent the plaintiff alleges that the existence of the VIAGRA patent and Pfizer’s reliance on procedures under the Patent Act and NOC Regulations cannot constitute a juristic reason for the alleged enrichment.
The remaining requirements for certification of the class action remain to be addressed at a further hearing.
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