By this motion, two additional innovator companies sought leave to be added as defendants to Apotex's counterclaim against Servier under the Competition Act. Apotex alleged that Servier entered into a conspiracy with the two innovator companies and agreed to allocate amongst themselves certain patent claims that were the subject of a conflict proceeding between those parties. Apotex has made very similar allegations in a counterclaim under the Competition Act in a separate action involving the two innovator companies. Apotex and Servier opposed the motion.
The Court denied the motion. Plaintiffs are allowed to choose the defendants against whom they wish to proceed. The test is stringent to add a party to a proceeding. The Court found that the two additional parties would not be bound by the results of this action, as there is nothing in the jurisprudence or the Competition Act which indicates that establishing the elements of the conspiracy for one defendant relieves the burden on the plaintiff in any way in subsequent proceedings against another party on the same conspiracy.
The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2007/2007fc1210/2007fc1210.html