AstraZeneca Canada Inc. v. Apotex Inc., 2017 FC 726 (Omeprazole*)
Justice Barnes - 2017-07-26
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In these bifurcated proceedings, AstraZeneca seek an accounting of the profits earned by Apotex from the infringement of AstraZeneca’s Canadian Letters Patent No 1,292,693. In the liability phase of the infringement actions (Court dockets T-1409-04 and T-1890-11), the Court found in favour of AstraZeneca: see AstraZeneca v Apotex, 2015 FC 322, aff’d in part 2017 FCA 9. The commercial product covered by the 693 Patent is an omeprazole formulation marketed by AstraZeneca in Canada under the trade name LOSEC. The period of infringement by Apotex runs from September 5, 2003 to December 3, 2008. In Court docket T-2300-05 Apotex, in turn, seeks an offset for its section 8 damages for being held out of the Canadian market for its generic omeprazole formulation [Apo-Omeprazole] between January 3, 2002 and December 30, 2003 by reason of AstraZeneca’s failed Patented Medicines (Notice of Compliance) application concerning its 762 Patent. The parties have left with the Court the following matters for determination: (a) During the period of infringement of the 693 Patent, did Apotex have an available non-infringing alternative [NIA]; (b) How should the Court reconcile the section 8 Judgment in favour of Apotex in Court docket T-2300-05 with the infringement Judgment in favour of AstraZeneca in Court dockets T-1409-04 and T-1890-11; (c) With respect to Apotex’s profits from the infringement of the 693 Patent, what allowance should be made for profits-on-profits; and (d) With respect to the infringement of the 693 Patent, what allowance is required having regard to the United States District Court award for the infringement of the United States Patent No 4,786,505 [505 Patent] and Apotex’s satisfaction of that award.
Decision relates to:
- T-1409-04 - ASTRAZENECA CANADA INC. ET AL v. APOTEX INC.
- T-1890-11 - ASTRAZENECA AB ET AL v. APOTEX INC.
- T-2300-05 - APOTEX INC. v. ASTRAZENECA CANADA INC.