Astrazeneca Canada Inc v. Apotex Inc, 2016 FC 865 (Omeprazole*)
Justice Zinn - 2016-07-22
Read full decision. Automatically generated summary:
[Note: this decision is from July 2016 but just published online now] Apotex infringed Canadian Letters Patent 1,292,693 and parties are now proceeding to a reference into the Plaintiffs’ [AstraZeneca] damages or Apotex’s profits, as AstraZeneca may elect. ... AstraZeneca also points to the conduct of Apotex in this litigation and says that its NIA plea is a “moving target” up to and including the date the motion was heard. There is merit to that observation; however, the Court finds that the Notice of Testing (of 13 formulations) served by Apotex a few days prior to this motion does serve to identify precisely the formulations on which Apotex will be relying to prove its NIA plea. The date of that notice was set by the trial judge, knowing the scheduled trial date. The parameters of the NIA plea in terms of the formulations to be tested to provide evidence in support of that plea were long known by the parties. Thus, to some extent the exact range of formulations was always a bit of a moving target; although it is may be a greater range of movement with the amendment sought. I am satisfied that Apotex has met its burden in this case, and the motion will be granted. I shall not give Apotex its costs of this motion, as is requested. The very late withdrawal of its amendment to paragraph 46(d) and the moving target it has created are not to be rewarded with costs.
Decision relates to:
- T-1409-04 - ASTRAZENECA CANADA INC. ET AL v. APOTEX INC.
- T-1890-11 - ASTRAZENECA AB ET AL v. APOTEX INC.