PMPRB Appeals Ratiopharm/Sandoz Decisions to Federal Court of Appeal

Fed Court of AppealAs I expected, on June 26th, the Attorney General of Canada (on behalf of the PMPRB) filed appeals of the recent decisions of the Federal Court in the Ratiopharm and Sandoz cases to the Federal Court of Appeal.

Hearing dates have not yet been scheduled.  Normally, it takes about eight to fourteen months from the filing of the notice of appeal until the result of the appeal is known.  Things don’t necessarily end there, as participants may also seek leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada.

The relatively recent case of Celgene Corp. v.  Canada (Attorney General) provides some guidance as to how long the Ratiopharm/Sandoz appeals may take.  The Celgene case involved an initial judicial review of a PMPRB Board order to the Federal Court, an appeal of that decision to the Federal Court of Appeal and, finally, an appeal to the Supreme Court of Canada.  The Federal Court of Appeal issued its decision in the Celgene appeal nine months after the original Federal Court decision, and the Supreme Court of Canada issued its decision on the appeal of the Federal Court of Appeal decision 13 months after the Federal Court of Appeal’s decision (or just short of two years after the original Federal Court decision).

Therefore, we won’t have any more judicial clarity on the definition of a patentee for PMPRB purposes until the first quarter of 2015 at the earliest.

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