• Does an Injunction Preventing the Sale of Medication Irreparably Harm Patients? Issue is Left to be Decided another Day
  • May 30, 2014 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Janssen Inc. v. AbbVie Corporation, 2014 FCA 112

    Janssen sought a stay of the remedies phase of a trial before the Federal Court. Janssen had earlier been found to be infringing AbbVie’s patent directed to human antibodies that bind a human cytokine known as interleukin 12 or IL-12 by the Federal Court (2014 FC 55). The decision on the merits is awaiting hearing by the Court of Appeal, and Janssen argued it was prudent to wait for the results of that appeal before deciding the remedies. Furthermore, the remedies phase was bifurcated into separate hearings for the injunction and the issue of damages, and that decision is also under appeal (2014 FC 178). Janssen argued if it was successful in the Court of Appeal, then the trial for injunctive relief either should not happen, or should not have been separated from the damages issues.

    The Court of Appeal applied the test from RJR-MacDonald for a stay, but found that Janssen had not demonstrated irreparable harm. However, Janssen was specifically not precluded from bringing this motion again in the future.

    Janssen had argued that patients will not be able to use its medication if the injunction issues, but the Court found that patients are not affected at this point in time. Depending on what happens in the Federal Court, the injunction may include terms that reduce or eliminate the harm to patients or, for that matter, other harms that Janssen could suffer. Or it might not grant the injunction at all. So at this point, the Court of Appeal held that the irreparable harm is speculative and hypothetical, and it declined to decide the issue of whether the harm to patients could amount to irreparable harm.