The Court of Appeal overturned the decision of the Trial Judge and restored the decision of the PMPRB providing jurisdiction to the PMPRB over medicines imported under the Special Access Program.

The Court of Appeal held that the only question before the Board was whether the medicine was being sold in any market in Canada. If so, then the Board could require the patentee to provide pricing information about the medicine and make a remedial order regarding the pricing.

The Court of Appeal concluded that the phrase should not be interpreted with reference to common law commercial legal principles for determining the location of a sale, as the price regulation provisions of the Patent Act are for the protection of consumers. The Court of Appeal held that the legislation is part of a regulatory scheme administered by a specialized tribunal to prevent the abuse of the monopolistic market power created by a patent through the charging of excessive prices for medicines used to treat patients in Canada. This must be used to guide the meaning of the phrase in question. Thus, the Court of Appeal agreed with the PMPRB’s interpretation of the phrase as enabling the Board to oversee the prices of medicines in Canada either generally or in specific markets, including purchasers receiving medicines through the Special Access Program.

The full text of the decision can be found at:

http://decisions.fca-caf.gc.ca/en/2009/2009fca378/2009fca378.html