Apotex Inc. v. Eli Lilly Canada Inc., 2021 ONSC 1588


Read full decision. Summary prepared by Alan Macek:

This is a motion for summary judgment brought by the defendants Lilly seeking to dismiss the action issued against them by the plaintiffs Apotex. ... While I find that the action is not barred by the Limitations Act, 2002, I conclude that to the extent Apotex was kept out of the market, this was due to the operation of the PM(NOC) Regulations when Lilly was acting lawfully, pursuant to a patent issued in accordance with the Patent Act. ... When it was enacted almost 400 years ago, the English Statute of Monopolies specified that the prohibition on monopolies did not apply to patents for new inventions. This is also the case in the Ontario Statute of Monopolies. Further, even if the patent could have authorized an unlawful monopoly, as it has now been declared invalid and void ab initio, Lilly is deemed to have never been granted a licence, patent or monopoly that is prohibited by the Statutes of Monopolies. I also conclude that Lilly has committed no wrongdoing that would give rise to liability under the Trademarks Act or at common law. Apotex led no evidence to support such claims other than the facts that Lilly sought and obtained a patent for Olanzapine, and then invoked the PM(NOC) Regulations as it was entitled to do when it held that patent. Lilly did not engage in any unlawful conspiracy or make any false or misleading statements. Consequently, I am satisfied that there are no genuine issues requiring a trial, and I dismiss the action.


Canadian Intellectual Property