Proposed Intervention Fails to Bring a Perspective to the Proceedings Different From That of the Parties
Pfizer Limited v. Ratiopharm Inc., 2009 FCA 339 (Layden-Stevenson, J.A.)

November 19, 2009

Tony Creber, Chantal Saunders and John Norman for the Proposed Intervener, BIOTECanada, Eli Lilly Canada Inc. and Eli Lilly and Company
John B. Laskin and W. Grant Worden for the Appellant, Pfizer Limited (Pfizer)
David W. Aitken and Marcus Klee for the Respondent, ratiopharm Inc. (ratiopharm)

On this motion, BIOTECanada, Eli Lilly Canada Inc. and Eli Lilly and Company sought leave to intervene in the appeal (A-281-09) between Pfizer and ratiopharm.

In dismissing the motion, the Federal Court of Appeal reiterated that leave to intervene may be granted if each intervener has an interest in the outcome of the litigation, has rights that may be adversely affected by the outcome and will assist the court by bringing a perspective to the proceedings different from that of the parties.

The proposed interveners submitted that in finding the relevant patent, the '393 Patent, invalid on the basis of utility and Section 53 of the Patent Act, Justice Hughes significantly changed established law relating to utility and Section 53 of the Act. The proposed interveners claimed to have specialized expertise in patent law and practises around the world which the parties themselves would not be able to canvass.

The Court of Appeal found that aside from the issue of international patent law and practice, the interest of the proposed interveners was merely jurisprudential, which is not sufficient for receiving intervener status. On the issue of international patent law and practice, the proposed interveners explicitly stated that they did not seek to introduce evidence on the appeal, which the Court of Appeal indicated would seriously undermine their prospect of adding a new perspective to the dispute. Lastly, the Court of Appeal was not satisfied that the proposed interveners would present the court with submissions that are useful and different from those that Pfizer will make. Consequently, the Court of Appeal dismissed the motion with costs to ratiopharm.

By: Christopher Heer, Bennett Jones LLP