Survey rebuttals aid defendant in drug dispensing case

A recent case in the Federal Court of Canada was decided in favor of the defendant following testimony on their behalf. The dispute concerned an application by the defendant to market a generic drug in Canada, and claims of patent infringment as a result of the way in which the generic product was described in the product monograph. Applied Marketing Science (AMS) was retained to provide rebuttal testimony to two surveys conducted by a well-regarded survey expert in Canada. One survey attempted to show a causal link between the information in the plaintiff’s product monograph and the actions of doctors in prescribing the generic product. The second survey attempted to do the same for the actions of pharmacists in dispensing the generic product. The trial court found for the defendant and agreed with the opinion expressed in the AMS report that neither survey could provide reliable information as to whether the reported behavior of physicians and pharmacists could be construed as having been induced or influenced by the defendant.