18 | Pharmaceutical Litigation
ent is percolating along
through the patent office
the patentee makes representations to the office
and says 'well, I've drafted
my claim this way because
I want to get around a
piece of prior art,' and the
patentee is then bound by
that later on."
In contrast, "in Canada
patents are treated more
like contracts in the sense
that all the negotiations
leading up to the patent
aren't pertinent, as all you
look at is the patent itself,"
she says. "So I believe that
if what you said in your
patent is 'this invention
will work for this disease,'
for example, then you
should be bound by that because that is
the basis on which you got your patent."
But whichever way you see the promise
of the patent argument, "if you have anything to do with drafting patents, you've
got to pay more attention to them," says
Shaughnessy. "I think we are moving
from a world of many, many patents to
a world of fewer higher-quality patents.
Canadian courts seem to want to see
higher-quality patents."
Poznyakov/shutterstock.com
Brand/generic pharmaceutical litigation is rooted in legal argument, but also
economic realities. Traditionally, brands
and generics battle it out over the drugs
familiar to the general public. But as competitive and litigious as the pharma sector
has become, Hitchman says the number
of new cases being litigated is dropping.
"The provinces have clamped down on
the amount the generics can charge for
their drugs and drastically reduced their
prices," says Hitchman, whose practice
focuses on pharmaceutical litigation in
both the patent and trade-mark areas.
"Consequently, they are not as keen to
challenge the patents."
Any slowdown in litigation may also
be a result of brand pharma's current
"pipeline," says Stainsby. "It's not so much
about the law," says Stainsby, "but rather
the small number of branded pharmaceuticals remaining under patent protection
LEXPERT®Ranked Lawyers
Goldman, QC,
Calvin S.
Goodmans LLP
(416) 597-5914
cgoldman@goodmans.ca
Mr. Goldman, a former
Commissioner of the
Competition Bureau,
focuses his competition
practice on domestic
and international
mergers, abuse of
dominance, cartels,
reviewable matters,
trade practices and
foreign investment
reviews under the ICA.
Gottlieb, Matthew P.
Griffin, Peter
Groia, Joseph
Guay, François
Hausman, David A.
Lax O'Sullivan Scott
Lisus LLP
Lenczner Slaght Royce
Smith Griffin LLP
Groia & Company
Professional Corporation
Smart & Biggar/
Fetherstonhaugh
Fasken Martineau
DuMoulin LLP
(416) 644-5353
mgottlieb@
counsel-toronto.com
(416) 865-2921
pgriffin@litigate.com
(416) 203-4472
jgroia@groiaco.com
(514) 954-1500
fguay@smart-biggar.ca
(416) 868-3486
dhausman@fasken.com
Mr. Griffin is recognized
by his peers as one
of the top litigators
in Canada. He has
extensive experience
in complex crossborder litigation,
especially as it relates
to class proceedings
and insolvency and
restructuring.
Mr. Groia practises
securities litigation in
civil, regulatory and
criminal cases. He was
the OSC's Director of
Enforcement prior
to opening his own
securities litigation
boutique in 2000. He
co-authored Canada's
only securities litigation
textbook.
Mr. Guay's IP litigation
practice focuses on
patents, trade-marks,
industrial designs,
copyright, unfair
competition, trade
secrets and computerrelated technology.
His briefs embrace
extraordinary recourses
such as injunctions
and seizures.
Mr. Hausman practises
exclusively in the
field of securities
litigation. He represents
investment dealers,
public companies,
mutual funds and
directors & officers
in regulatory and
civil proceedings and
internal investigations
across Canada.
Mr. Gottlieb focuses
on business litigation,
including commercial,
securities and
insolvency and
restructuring litigation.
He appears at all levels
of Ontario courts and
the courts of other
provinces, the OSC,
the Federal Court
and the SCC.
