Apotex Inc. v. ADIR, 2017 FCA 23 (Perindopril*)
Justice Dawson; Justice Boivin; Justice Woods - 2017-02-02
Read full decision. Automatically generated summary:
ADIR is the owner of Canadian Patent No. 1,341,196 (196 Patent) which claims the drug perindopril. ... On this appeal Apotex asserts that the Federal Court (see 2015 FC 721) erred in two respects by: i) failing to reduce the profits Apotex received from infringement by taking into account the availability of non-infringing alternatives; and, ii) failing to apportion or segregate the profit Apotex earned on the sale of infringing perindopril from the profit it earned from the provision of the indemnity and related legal services Apotex agreed to provide to its foreign affiliates. For the reasons that follow, I have concluded that the Federal Court erred in law by rejecting the relevance at law of any available non-infringing perindopril and failed to adequately consider the evidence adduced as to the ability and willingness of three suppliers to provide non-infringing perindopril. In light of the factually complex evidentiary record before the Federal Court and the need to assess the credibility of the evidence, I would remit this issue to the Federal Court as described in more detail below. I have further concluded that while the Federal Court committed an extricable error of law in its interpretation of contracts between Apotex and its affiliates, it did not err in its ultimate conclusion that this is not a proper case to apportion Apotex’ profit. It follows that except for the single issue I would remit to the Federal Court, I would in all other respects dismiss the appeal.
Decision relates to:
- A-315-15 - APOTEX INC ET AL v. ADIR ET AL which is an appeal from 2015 FC 721 in T-1548-06