The plaintiffs (Apotex) appealed an order of a prothonotary dismissing their motion under Rule 249 for an order directing the defendants (Pfizer) to provide samples of ACCUPRIL tablets and active ingredients.
The prothonotary had concluded that Apotex had not established that a reliable test existed to determine if the tablets met the 80% conversion threshold claimed in the patent, and that the request was made too late.
The Federal Court applied the Housen standard of review and found no error of law in the prothonotary's application of the test for ordering samples under Rule 249.
The Court also found no palpable and overriding error in the prothonotary's assessment of the expert evidence regarding the availability of quantitative testing or the timing of the motion.
The appeal was dismissed.
