In February, 2022, the Québec Court of Appeal confirmed the unconstitutionality of two out of three amendments to the Patented Medicines Regulations which govern the PMPRB federal patented drug pricing regime under the Patent Act, following the constitutional challenge filed by Fasken in the Superior Court of Québec.
The Quebec Court of Appeal confirmed the unconstitutionality of the parts of the amendments that authorized the PMPRB to gain access to confidential pricing and rebate information provided by drug manufacturers to the provinces, as well as the ability for the PMPRB to rely on pharmacoeconomic factors which would arbitrarily drive prices down.
Following this successful outcome, the Quebec Superior Court also issued an unprecedented decision awarding the plaintiff companies 100% of their expert fees, totalling nearly $800,000.
This matter was the first of its kind in which a Court provided substantial analysis of the scope of the federal patent power. It is also the first case to strike down any part of the PMPRB regime on constitutional grounds. It will have multi-billion dollar ramifications to the Canadian pharmaceutical industry.
A Fasken team comprised of Julie Desrosiers, Marc-André Fabien, Michael Shortt, Eliane Ellbogen, Mathieu Gagné, Dara Jospé, Marc-André Boucher, Marie Lafleur, and Chris Semerjian successfully represented Merck Canada Inc., Janssen Inc., Servier Canada Inc., Boehringer Ingelheim Canada Ltd/Ltée, and Bayer Canada Inc. (among others) in this case.
Jurisdiction
- Québec
