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Unconsolidated Statutes

It may come as a surprise to some but there are some old statutes that are still good law in Ontario. These statutes are not consolidated, unlike most statutes we work with daily.

Unconsolidated Statutes

. Apotex Inc. v. Eli Lilly Canada Inc.

In Apotex Inc. v. Eli Lilly Canada Inc. (Ont CA, 2022) the Court of Appeal refers to an unconsolidated statute, the 'Statute of Monopolies':
(iii) Did the motion judge err in rejecting Apotex’s claim under the Statute of Monopolies?

[44] Apotex argues that the motion judge erred in concluding that Eli Lilly’s invalid patent was a patent for a new invention that is not prohibited by the Statute of Monopolies. According to Apotex, the Statute of Monopolies only exempts valid patents. They argue that the 113 Patent was never a valid patent because it was void ab initio, and therefore it is not exempted. As a result, the motion judge erred in rejecting Apotex’s claim on that basis. The motion judge also erred in relying on Peck v. Hindes (1898), 15 R.P.C. 113 (Q.B.D.), to dismiss Apotex’s claims.

[45] I see no error in the motion judge’s conclusions on this issue.

[46] Monopolies flowing from patents for new inventions are explicitly excluded from liability under s. 5 of the Statute of Monopolies. There is no question that at the time Eli Lilly’s 113 Patent was granted, it was a patent for a new invention.

[47] The Statute does not distinguish between valid and subsequently invalidated patents. As the motion judge noted, correctly in my view, this is in keeping with the historical purpose behind the English Statute of Monopolies, first enacted in 1624, upon which the Ontario Statute is based. Parliament passed the Statute of Monopolies in an attempt to limit abuses by the Crown in granting “letters patent”, not “patents of invention”. The Statute was passed in response to the Crown granting letters patent to operate or regulate industries, or to have others act as agents of the Crown in operating monopolies for trade and industry, independent of merit or invention.

[48] The motion judge’s reliance on Peck v. Hindes, a decision of the Queen’s Bench division of the English High Court of Justice, was not misplaced. As the motion judge noted, the holding in Peck v. Hindes that the Statute of Monopolies “applies in its terms to invalid and improper exercises of the Royal Prerogative, and not to Letters Patent which were perfectly legitimate and protected by law”, is consistent with the motion judge’s reasoning that there was nothing illegitimate or unlawful in the granting of Eli Lilly’s 113 Patent.


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