Apotex Inc. v. Merck & Co., Inc., 2015 FCA 171 (Lovastatin*)

Justice Dawson; Justice Stratas; Justice Boivin - 2015-07-23

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The principal issue raised on this appeal is whether, when calculating damages for patent infringement, it is relevant to consider the availability of non-infringing alternative products available to the infringer. For the reasons that follow I have concluded that, as a matter of law, the availability of a non-infringing alternative is a relevant consideration. The issue arises in the following context: Apotex has been found liable for patent infringement. On the issue of remedy, Apotex submits that the damages it is liable for should be reduced because it had available a non-infringing product that it could and would have used. On the evidentiary record before us, I disagree.  Therefore, I would dismiss the appeal with costs.

Decision relates to:


Canadian Intellectual Property