JANSSEN INC. v. DAIICHI SANKYO COMPANY, LIMITED, 2012 FCA 137

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20120503 Docket: A-490-11 Citation: 2012 FCA 137 CORAM: SHARLOW J.A. PELLETIER J.A. STRATAS J.A. BETWEEN: JANSSEN INC. AND DAIICHI SANKYO COMPANY, LIMITED Appellants and TEVA CANADA LIMITED Respondent Heard at Toronto, Ontario , on May 3, 2012. Judgment delivered from the Bench at Toronto, Ontario , on May 3, 2012. REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. Date: 20120503 Docket: A-490-11 Citation: 2012 FCA 137 CORAM: SHARLOW J.A. PELLETIER J.A. STRATAS J.A. BETWEEN: JANSSEN INC. AND DAIICHI SANKYO COMPANY, LIMITED Appellants

and TEVA CANADA LIMITED Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on May 3, 2012) PELLETIER J.A. [1] This is an appeal of an interlocutory order, the reasons for which are reported at 2011 FC 1480, in which the trial judgeexercised his discretion to dismiss a motion for the joinder of parties. The motion was made following the infringement/liability portionof a patent infringement action which was bifurcated.

The plaintiffs/appellants seek to add additional parties as plaintiffs on the basisthat they are entitled to damages as persons claiming through the patentee. [2] Having read the trial judge’s reasons and having heard the submissions of counsel for the appellant, we are not persuadedthat the trial judge erred in principle in exercising his discretion as he did, that he seriously misapprehended the facts, or that an obviousinjustice will result from his decision: see Janssen Pharmaceutica Inc. v. Apotex, (1988) (FCA), 82 C.P.R. (3d) 574 atpara. 2. In particular, we are not persuaded that the trial judge’s

interpretation of the bifurcation order was such as to amount to an errorin principle. [3] The appeal will be dismissed with costs fixed at $5,000 inclusive of disbursements. “J.D. Denis Pelletier” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-490-11 (APPEAL FROM THE ORDER OF THE HONOURABLE JUSTICE HUGHES DATED DECEMBER 15, 2011, DOCKET NO.T-2175-04) STYLE OF CAUSE: Janssen Inc. and Daiichi Sankyo Company, Limited v. Teva CanadaLimited

PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: May 3, 2012 REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW, PELLETIER & STRATAS JJ.A. DELIVERED FROM THE BENCH BY: PELLETIER J.A. APPEARANCES : Neil Belmore Greg Beach FOR THE APPELLANTS Marcus Klee David Aitken FOR THE RESPONDENT SOLICITORS OF RECORD : Belmore Neidrauer LLP Toronto, Ontario FOR THE APPELLANTS Olser Hoskin & Harcourt Toronto , Ontario FOR THE RESPONDENT