Merck & Co Inc. v. Apotex Inc., 2010 FC 1265 (Lovastatin*)

Justice Snider - 2010-12-22

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The subject of this litigation is the drug lovastatin, sold in Canada under the trade name MEVACOR since 1988 by Merck Frosst Canada Inc. (or its successor, Merck Frosst Canada Ltd. (Merck Frosst), one of the Plaintiffs in this action). MEVACOR was the first commercialized .statin. sold in the Canadian market and is used for the treatment of elevated blood cholesterol. Until January 31, 2001, when the patent expired, MEVACOR was the subject of Canadian Patent No. 1,161,380 ('380 Patent) issued January 31, 1984 to Merck & Co., Inc. (Merck & Co.), the other Plaintiff in this action. Stated briefly, the '380 Patent is a product-by-process patent to lovastatin when made with a micro-organism known as Aspergillus terreus (also referred to as A. terreus). Merck Frosst sells MEVACOR in Canada under licence from Merck & Co. In these reasons, I will refer to Merck Frosst and Merck & Co., collectively, as 'Merck' or the 'Plaintiffs'.

Decision relates to:


Canadian Intellectual Property