Allergan Inc. v. Apotex Inc., 2012 ONSC 398

Apotex moved to strike Allergan’s Statement of Claim which alleged that
Apotex infringed its patents covering the compound bimatoprost (sold under
LATISSE). Apotex argued that the claim is devoid of material facts, consists of
bald conclusions or speculative pleas of patent infringement, and that
therefore the claim should be struck for disclosing no reasonable cause of
action (Rule 21.02(1)(b)) or for being scandalous, vexatious or an abuse of
process (Rule 25.11). In the alternative, Apotex sought an order compelling
Allergan to deliver particulars (Rule 25.10).

Apotex’s motion is dismissed.

The claim alleges sufficient material facts by which Apotex is alleged
to have infringed the relevant patents. Apotex may have evidence which may
protect some of its conduct as pleaded under the regulatory approval (s. 55.2(1))
or the common law experimental use exceptions to infringement. This evidence if
available and put before the Court may be relevant in assessing a genuine issue
or serious issue to be tried. However, it cannot be said to be plain and
obvious that the pleading discloses no reasonable cause of action. It should
therefore not be struck.

There is nothing in Allergan's claim as pleaded that meets the high
standard required to establish a pleading is "scandalous, frivolous,
vexatious or an abuse of process."

The Court also rejected Apotex’s request for an order compelling
Allergan to deliver particulars.