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2017
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LEXPERT 41
WE TACKLE IT ALL.
Our class actions team can handle all your legal needs.
Gardiner Roberts LLP's
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(GR's) team of experienced lawyers approach
class action litigation with one goal in mind – to win, either in court,
or through a number of other alternative dispute resolution options.
As a full-service, mid-sized law rm with over 90+ years of
experience, GR's bench strength ensures that we have the
right match up for any opponent you're up against.
For more information on how we blitz the competition,
please contact: John A. Campion, Chair of the Class
Action Group at 416.865.6697, Gavin J. Tighe at
416.865.6664 or visit www.grllp.com.
† Named one of Ontario's Top 10 Regional Firms by Canadian Lawyer Magazine in 2017-18.
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IAN BLUE · JOHN CAMPION · STEPHANIE CLARK · ANNA HUSA
GAVIN
TIGHE · EVERT VAN WOUDENBERG · ELMER ATTÉ
e court's decision, issued by Justice Alan
Diner, evaluated whether the 098 Patent was
obvious. e Court agreed with Mylan that
the supposed "teaching away" art had been
superseded by subsequent art, including
that from AstraZeneca, that taught how to
make and use a non-enteric-coated PPI. In
evaluating whether a skilled person would
be motivated to try a sequential-release for-
mulation, the Court provided a thoughtful
discussion and concluded that the distinc-
tion between "specific" and "general" mo-
tivation may be a false dichotomy; that the
truth behind this requisite motivation may
lie somewhere in the gray — between the
black of general motivation, and the white
of specific motivation.
e court noted a similar formulation had
been used for an earlier product, ARTH-
ROTEC, which served a similar purpose
in protecting against NSAID side effects.
Whether or not it had the same mechan-
ism of action, the court found it would
have been self-evident to successfully apply
an ARTHROTEC-type architecture to an
NSAID-PPI formulation that sought to
achieve the same effect.
In conclusion, Justice Alan Diner wrote:
"For the reasons set out above, I find that
Mylan's allegations that it was obvious to try
to obtain a sequential release of a NSAID-
PPI formulation in a single oral dosage com-
bination has an air of reality. AstraZeneca
failed to convince the Court that Mylan's
allegations of invalidity on the basis of ob-
viousness are unjustified. e application for
an order of prohibition is dismissed.
"AstraZeneca's application for an order
pursuant to section 6 of the Regulations
prohibiting the Minister of Health from
issuing a Notice of Compliance to Mylan
for a generic naproxen-esomeprazole mag-
nesium tablet is dismissed. e Minister
of Health may therefore issue a Notice of
Compliance to Mylan for the contested
product forthwith."
J. Bradley White, Nathaniel Lipkus,
Carina de Pellegrin and Rebecca Stiles of
Osler, Hoskin & Harcourt LLP acted for
Mylan Pharmaceuticals. Yoon Kang, An-
drew Mandlsohn and Paul Jorgensen of
Smart & Biggar/Fetherstonhaugh repre-
sented AstraZeneca Canada.
Zarnett, Benjamin Goodmans LLP
(416) 597-4204 bzarnett@goodmans.ca
Mr. Zarnett's litigation practice has included high-profile business cases
including the litigation over the proposed privatization of BCE, the Asset-
Backed Commercial Paper litigation, Indalex priority dispute and Nortel
asset allocation dispute. Appears before the SCC, FCC, all levels of courts
in Ontario and many administrative tribunals.
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