ADIR et al. v. Apotex et al., 2015 FC 721 (Perindopril*)
Justice Gagné - 2015-06-18
Read full decision. Summary prepared by Alan Macek:
In this reference, the Court considered the appropriate calculation of Apotex's profits causally attributable to the sale of perindopril products following the liability judgment of Justice Snider (see 2008 FC 825 aff'd 2009 FCA 222). The key issues were a) whether a portion of Apotex's revenue should be disaggregated as part of the sale price was paid on account of non-infringing indemnity and legal services offered to foreign affiliates and b) whether non-infringing alternatives (NIAs) were available. The Court concluded there was insufficient evidence that the amounts paid were on account of the indemnity and legal services. On NIAs, the Court canvassed the jurisprudence, including the SCC's Schmeiser decision and concluded, "the Supreme Court did not make new law in Schmeiser, nor did it suggest that in an accounting of profits, courts are bound to always consider NIA products, options or scenarios, as fanciful as they may be." The Court rejected the NIA defence and ordered that over $61 million in profits be paid to the plaintiffs.
Decision relates to:
- T-1548-06 - LES LABORATOIRES SERVIER ET AL v. APOTEX INC. ET AL
- A-315-15(2017 FCA 23) - which is an appeal from this decision