In earlier PMNOC proceedings, Lundbeck successfully obtained an order prohibiting the Minister from issuing a Notice of Compliance to Apotex in respect of its escitalopram product. Although Apotex appealed the decision (appeal hearing commenced on September 14, 2010), Apotex also commenced the present action to invalidate the Lundbeck patent and at the same time sought a declaration of non-infringement. Lundbeck counterclaimed in the action but had to accept that in doing so it had knowledge of no material facts that demonstrated that Apotex had actually commenced any infringing activities. Lundbeck had to accept that it was trite law that speculative pleadings could be struck for being an abuse of process but argued that because its counterclaim for infringement was in response to Apotex’s declaration for non-infringement, the usual principles didn’t apply. This was because Apotex itself had put before the court the question of whether Apotex’s product infringes the Lundbeck patent and Lundbeck was simply responding in pleadings to that allegation. The Prothonotary dismissed the motion to strike and held that it would not be improper or abusive for Lundbeck to seek from the court – even without having any evidence at this stage – a remedy that was opposite to what Apotex was seeking and which Apotex had itself put in issue between the parties. If, however, Apotex had not sought a declaration of non-infringement, Lundbeck's infringement allegation would have been struck.

In the motion for security for costs, even though the particular Lundbeck entity in the proceeding is not ordinarily resident in Canada, it did provide evidence that it had some assets in Canada and did demonstrate a capability to pay an award of costs from assets outside of Canada. Given this, the Prothonotary exempted Lundbeck from the requirement to post security for costs.

The full text of the decision can be found at: