Apotex Inc. v. AstraZeneca Canada Inc., 2018 FC 181 (Esomeprazole*)
Justice Locke - 2018-02-15
Read full decision. Summary prepared by Alan Macek:
This decision follows a trial that took place over a number of weeks in May and June 2017 in relation to two actions. ... In the main action, Apotex seeks damages under s. 8 of the PM(NOC) Regulations (since amended) for its losses suffered during the time it was kept off the market for its version of esomeprazole magnesium (40 mg and 20 mg tablets) by operation of the Regulations. ... In the other action to be addressed in this decision, AstraZeneca  seek damages and other remedies from Apotex for infringement of the 653 and 994 Patents once Apotex obtained its NOC for Apo-Esomeprazole. [The validity of the 653 Patent had been considered at trial (2014 FC 638) finding it invalid as lacking utility, appeal dismissed (2015 FCA 158) but appeal allowed at the Supreme Court (2017 SCC 36).] ... In my view, the SCC indicated its intent that the validity of the 653 Patent was finally decided in its decision by stating at para 2 that “[h]ad the trial judge not applied [the Promise Doctrine], he would have been compelled to find that the ‘653 patent had sufficient utility, and upheld its validity”. ... For these reasons, I conclude that any Apotex loss under s. 8(1) of the Regulations is fully offset by the costs of its infringement.
Decision relates to:
- T-1668-10 - ASTRAZENECA CANADA INC. ET AL v. APOTEX INC.
- T-389-11 - APOTEX INC. v. ASTRAZENECA CANADA INC.
- A-92-18 - which is an appeal from this decision