On October 16, 2018, Prothonotary Tabib ordered that common validity issues in actions relating to Biogen’s fampridine (FAMPYRA) against Taro and Apotex are to be heard concurrently: Biogen v Taro; Biogen v Apotex, 2018 FC 1034. Biogen’s actions against Taro and Apotex under the PMNOC Regulations had been commenced on June 15, 2018 and July 24, 2018, respectively (see our prior article, Amended PMNOC Regulations: First Anniversary Update). Biogen and Apotex consented to having the invalidity issues heard concurrently. Taro did not, due to its concern that it could lose the commercial advantage of being first on the market.
Prothonotary Tabib concluded that having the common invalidity issues heard together would be the most efficient use of the Court and parties’ time and resources, and would achieve the just, most efficient and least expensive determination of the issues. She further concluded that Taro would not suffer prejudice: even though Taro was the first generic to serve a notice of allegation, this does not guarantee that Taro would be first on the market, even if the trials were heard separately. Further, only common issues will be heard together, and the remainder of the issues in Apotex’s action would be heard at a later date, such that a judgment in Taro’s action could be issued before Apotex’s action concludes. Thus, she ordered that the common invalidity issues in the Taro and Apotex actions be heard concurrently in March 2020, with the remainder of the issues in Apotex’s action to be heard in April 2020.