The Federal Court has allowed an appeal of a Prothonotary's decision that struck out certain paragraphs of an Amended Statement of Claim without leave to amend. Pfizer brought a motion to strike several paragraphs in Pharmascience's claim pursuant to section 8 of the PM(NOC) Regulations, including paragraphs 35 and 36:
35. Therefore, Pfizer's invocation of the PM(NOC) Regulations and its commencement of Prohibition Proceeding #1 and Prohibition Proceeding #2 have resulted in lost sales to Pharmascience for the Pharmascience Capsules, the Pharmascience 225 Capsules and other, non-pregabalin products.
36. In addition, during the Exclusionary Period and the Second Exclusionary Period, Pharmascience lost its opportunity for significantly enhancing its reputation for introducing new products on the market in advance of its competitors, thereby increasing the sale of Pharmascience' s products. As a result of this lost opportunity, Pharmascience was prevented from obtaining increased sales and market share for its non-pregabalin products.
The Court held that losses suffered during the section 8 period relating to other products and to overall market share are losses which the jurisprudence recognizes as potentially recoverable in a section 8 proceeding. On that basis, the claims to such losses were not struck.