Teva Canada Limited v. Janssen Inc. et al., 2018 FCA 33 (Levofloxacin*)
Justice Dawson; Justice Webb; Justice Gleason - 2018-02-08
Read full decision. Summary prepared by Alan Macek:
The Federal Court had found that claim 4 of the 080 Patent was valid and infringed by Teva when Teva offered for sale, and sold, products containing levofloxacin in Canada (see 2006 FC 1234 and 2007 FCA 217). The Federal Court ordered Teva to pay damages to Janssen Canada in the amount of $5,498,270.00 and to pay damages to Janssen US in the amount of $13,342,949.00 (2016 FC 593). The Federal Court later ordered Teva to pay costs jointly to Janssen Canada and Janssen US fixed in the amount of $1,000,000.00, inclusive of all fees, disbursements and taxes (2016 FC 727). In this appeal, the court found no error of law or palpable and overriding error of fact or mixed fact and law on the part of the Federal Court in awarding damages and costs. The issues considered were: i) Did the Federal Court err in finding that Scenario A best represented what would have happened in the “but for” world? ii) Did the Federal Court err in finding that Janssen had taken appropriate steps to mitigate its loss? iii) Did the Federal Court err in its quantification of lost sales to hospitals in the “but for” world? iv) Did the Federal Court err by finding that Janssen US was a person claiming under the patentee in Canada? v) If the Federal Court did not err in finding that Janssen US was a person claiming under the patentee in Canada, did the Federal Court err by: a. awarding permanent lost market share damages to Janssen US; b. failing to apply a one-month delay or lag to the commencement of Janssen US’s damages; and, c. failing to deduct a royalty payment that was contractually required. vi) Did the Federal Court err by awarding an excessive amount for costs? The appeal was dismissed with costs.
Decision relates to:
- A-244-16 - TEVA CANADA LIMITED v. JANSSEN INC. et al which is an appeal from 2016 FC 593 in T-2175-04
- A-274-16 - TEVA CANADA LTD. v. JANSSEN INC. et al. which is an appeal from 2016 FC 593 in T-2056-11