Bayer Inc. v. Cobalt Pharmaceuticals Company, 2016 FC 1192 (Drospirenone*)

Justice Fothergill - 2016-10-27

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On September 7, 2016, this Court held that Canadian Patent No. 2,382,426, which is owned by the Plaintiff Bayer, was valid and infringed by the Defendants Apotex and Cobalt (Bayer Inc v Apotex Inc, 2016 FC 1013). The parties were given an opportunity to make written submissions regarding Bayer’s entitlement to elect between damages and an accounting of profits. ... Bayer says that it is entitled to elect between damages and an accounting of profits following discovery. Apotex says that it, rather than Bayer, should be entitled to make the election, and that Bayer should be restricted to an accounting of profits. This novel approach is premised on Apotex’s prior adherence to the requirements of the Patented Medicines (Notice of Compliance) Regulations, and Justice Hughes’ finding in that context that Apotex’s products did not infringe the 426 Patent (Bayer Inc v Apotex Inc, 2014 FC 436). In the alternative, Apotex submits that Bayer should be required to make its election expeditiously following discovery. Apotex argues that, pursuant to s 57(1) of the Patent Act, the Court may allow an unsuccessful defendant to elect between damages and an accounting of profits on behalf of a successful plaintiff. I disagree.

Decision relates to:


Canadian Intellectual Property