Adir v. Apotex inc., 2018 FC 346 (Perindopril*)
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In 2008, the defendants, Apotex, were found liable for infringing ADIR’s Canadian Letters Patent No 1,341,196 by manufacturing and selling perindopril tablets in Canada (Laboratoires Servier, Adir, Oril Industries, Servier Canada Inc v Apotex Inc, 2008 FC 825 [Liability Judgment]). The plaintiffs, Servier, elected to receive an accounting of Apotex’s profits and, in ADIR v Apotex Inc, 2015 FC 721 [Perindopril FC], Apotex was ordered to disgorge its profits attributable to the infringement of the 196 Patent. Apotex appealed and the Federal Court of Appeal granted the appeal in part and sent one issue back to this Court for redetermination (Apotex Inc v ADIR, 2017 FCA 23 [Perindopril FCA]). The present reasons are thus directed towards whether any of Apotex’s profits from export sales of perindopril could have and would have been realized through use of a non-infringing alternative [NIA]. If so, the profits that it must disgorge to Servier should be reduced accordingly. For the reasons set out below, I find that Apotex has met its burden of proving that it could have obtained non-infringing perindopril for sale to its affiliates in the United Kingdom and Australia, but only at a delay of one year from the date of its real world sales. However, I am of the view that Apotex has not met its burden of proving that, in the hypothetical world, it would have obtained non-infringing perindopril from any of the three proposed non-affiliate suppliers.
Decision relates to:
- T-1548-06 - LES LABORATOIRES SERVIER ET AL v. APOTEX INC. ET AL
- A-128-18(2020 FCA 60) - which is an appeal from this decision