In this case, Justice Zinn granted an order for summary judgment in the Apotex impeachment action against Pfizer regarding Pfizer’s ‘446 Patent that was at issue before the Supreme Court in Viagra (2012 SCC 60). Justice Zinn found that the impeachment action was moot given that the Supreme Court found the ‘446 Patent to be void (despite the proceeding before the Supreme Court being a s. 55.2 Application).
Pfizer had brought a motion before the Supreme Court to challenge the remedy granted. However, Justice Zinn held that even if the Supreme Court changes its decision with respect to the remedy, sufficiency is a question of law, and thus the Supreme Court’s decision would be binding on lower courts. This is despite the fact that the proceeding before the Supreme Court was a s. 55.2 Application. As a result, even if the remedy from the Supreme Court decision is overturned, Pfizer’s patent is now invalid as a result of Justice Zinn’s decision, subject to appeal.