The Federal Court of Appeal has reaffirmed the constitutionality of the excessive price provisions of the Patent Act that ground the jurisdiction of the Patented Medicine Prices Review Board (PMPRB) over patented medicines.
In 2015, the PMPRB commenced a proceeding against Alexion alleging that the price of Alexion’s drug SOLIRIS® (eculizumab) was excessive. In response, Alexion brought a judicial review in the Federal Court seeking a declaration that the excessive price provisions of the Patent Act were unconstitutional.
Alexion’s judicial review application was struck on a motion by the Attorney General on the grounds that the Federal Court of Appeal had already ruled that the excessive price provisions were constitutional in the Sandoz decision. The Federal Court upheld the decision. Alexion appealed to the Federal Court of Appeal.
Sandoz is dispositive of the constitutional issue
The Court of Appeal held that the Sandoz Court found the relevant portions of the Patent Act had been validly enacted by Parliament: the price control provisions are within Parliament’s jurisdiction under subsection 91(22) of the Constitution Act, 1867 (“Patents of Invention and Discovery”) and do not impermissibly intrude on provincial authority under subsection 92(13) (“Property and Civil Rights in the Province”). Although the Sandoz Court addressed whether the price control provisions validly applied to non-patent holders or owners, the Court first addressed the question of whether the provisions were constitutionally supported as they applied to patent-holders. Thus, Alexion’s constitutional challenge had already been decided on the basis of stare decisis.
Links to Decisions:
- Federal Court of Appeal: Alexion Pharmaceuticals Inc v Attorney General of Canada, 2017 FCA 241
- Federal Court’s decision: Alexion Pharmaceuticals Inc v Attorney General of Canada, 2017 FC 22
- Prothonotary’s decision: Alexion Pharmaceuticals Inc v Attorney General of Canada, 2016 FC 716
- Sandoz Federal Court of Appeal: Attorney General of Canada v Sandoz Canada Inc, 2015 FCA 249