December 13, 2007, Judicial Review of a PMPRB decision; Adderall XR®, Concerta®

The Court reasoned that because the Patent Act defines the patentee as the person entitled to the benefit of the patent for that invention, and because the Patent Act provides the ability to sue for reasonable compensation from the time the patent application is laid open, once the patent is granted a patentee is entitled to the benefit of the patent from the date the patent application was laid open. Therefore, since the patentee enjoys the patent rights from the time a patent is laid open, once it issues, then the patentee is deemed by the Patent Act to enjoy those rights as a patentee and must be taken to have sold medicines "while a patentee" and as a person entitled to the benefits of the patent during that time.

Thus, the Board was correct in deciding that it was Parliament's intent that the Board's jurisdiction over the prices for medicine should extend to the period between the laid open date and the grant of the patent, provided that the patent is granted. The Board cannot review prices during the laid open period until a patent has granted.

The Court rejected arguments that this interpretation of the Act was retrospective or ultra vires the power of Parliament.

The full text of this decision can be found at:

 http://decisions.fct-cf.gc.ca/en/2007/2007fc1316/2007fc1316.html