Apotex Inc. v. Abbott Laboratories Limited, 2018 ONCA 332
Read full decision. Summary prepared by Alan Macek:
This is the second appeal arising out of an action brought by Apotex against Abbott and Takeda, concerning the patented medicine Prevacid® and Apotex’s generic drug Apo-lansoprazole. Apotex’s action alleged losses caused by Abbott and Takeda arising out of steps they took to deny Apo-lansoprazole access to the market. Abbott and Takeda were granted partial summary judgment dismissing Apotex’s unjust enrichment claim, and that decision was upheld by this court: Apotex Inc. v. Abbott Laboratories, Limited, 2013 ONCA 555. Apotex’s claim for damages continued. Apotex’s claimed damages for sales of Apo-lansoprazole that were lost during the period in which the drug could not be sold because of proceedings taken by Abbott and Takeda under s. 6 of the Patented Medicines (Notice of Compliance) Regulations. Those proceedings resulted in a stay of Apotex’s application for approval to sell the drug, and so precluded its sale. Abbott and Takeda brought a motion for summary judgment seeking to have Apotex’s damages claim dismissed. That motion was dismissed (see 2017 ONSC 1348). The motion judge concluded that, but for the proceedings taken by Abbott and Takeda, Apotex would have received approval from the Minister of Health to sell Apo-lansoprazole on April 17, 2007, and was therefore entitled to damages. The quantum of damages was left for determination at trial. Abbott and Takeda appeal from the motion judge’s order dismissing their motion for summary judgment. I would dismiss the appeal for the reasons that follow.