Motion by defendants appealing order of prothonotary denying leave to defendants to amend their respective fresh as amended statement(s) of defence. Plaintiffs were issued patent in relation to Lovastatin, pharmaceutical drug used to treat cholesterol. Defendant received notice of compliance (“NOC”) for Apo-lovastatin. Plaintiffs commenced patent infringement action. On consent of parties, action was bifurcated. Defendants sought, and were denied, leave to amend their statement of defence in respect of damages trial. Defendants proposed to plead that defendants could have employed non-infringing alternative process for producing Apo-Lovastatin, and therefore any damages that plaintiffs experienced by defendants actually employing infringing process for producing Lovastatin were not really damages at all by virtue of availability of non-infringing process. Motion granted. Pleading did not contain radical defect. Defendant advanced arguable and important point of law. It could not be said that answer was so forlorn that it was plain and obvious that it could not succeed.
Merck & Co. v. Apotex Inc.
(Apr. 18, 2012, F.C., Rennie J., File No. T-1272-97) 214 A.C.W.S. (3d) 761 (18 pp.).