Pfizer had provided a unilateral covenant not to sue Apotex for infringement with respect to its Patent No. 2,163,446. As a result, Pfizer claims in light of the covenant, Apotex is not an interested person, since there are no reasonable bases for Apotex in believing that its activities will be impugned by Pfizer.
The Federal Court does not answer the question in clarifying if Apotex would be considered an interested person or not. However it examines the condition where a party is entitled to bring a question of law before the court prior to trial.
The test for considering a question of law before the trial is set out in Prera v. Canada, [1998] 3 FC 981 (CA). The court must be satisfied that:
i. The “proposed questions are pure questions of law, that is to say questions that may be answered without having to make any findings of fact;” and
ii. The “questions to be answered are not academic and will be ‘conclusive of a matter in dispute’.”
Even if these two requirements are met, the court should consider if granting the motion would save time and expense. For this determination, the following factors are considered:
(i) any agreement of the parties,
(ii) the probability that the question will be answered in a manner that will dispose of the litigation,
(iii) the complexity of the facts that will have to be proved at the trial and the desirability, for that reason, of avoiding such a trial,
(iv) the difficulty and importance of the proposed question of law,
(v) the desirability that they not be answered in a ‘vacuum’, and
(vi) the possibility that the determination of the questions before trial might, in the end, save neither time not expense.
The court determined that in light of the motion being brought three weeks before the trial, the savings in time and expenses were minimal. Additionally, a further delay would have been prejudicial to Apotex, since the generic company desired to market its product as soon as possible.
By Asrin Jawaheri