Actions for infringement

Federal appeal | Intellectual Property

Patents

Actions for infringement

This was not proper case to apportion defendants’ profits
Plaintiff patent owner owned patent which claimed drug perindopril. Federal Court held that patent was infringed by defendants through manufacture in Canada and sale of perindopril tablets. Plaintiffs elected to recover profits defendants earned by reason of their infringing activities. Federal Court determined amount of defendants’ profits which were attributable to infringing activity. This required Federal Court to consider manufacture and sale of perindopril tablets in Canada as well as their sale abroad. With respect to export sales, Federal Court rejected argument that defendants’ profits should be reduced by taking into account availability of non-infringing alternatives, and argument that their profits should be reduced on basis that portion was attributable to non-infringing services they provided. Defendants appealed. Appeal allowed in part. Federal Court erred in law by rejecting relevance at law of any available non-infringing perindopril and failed to adequately consider evidence adduced as to ability and willingness of three suppliers to provide non-infringing perindopril. Issue would be remitted to Federal Court. While Federal Court committed extricable error of law in its interpretation of contracts between defendants and certain affiliates, it did not err in its ultimate conclusion that this was not proper case to apportion defendants’ profits.
Apotex Inc. v. ADIR (2017), 2017 CarswellNat 217, 2017 FCA 23, Eleanor R. Dawson J.A., Boivin J.A., and Woods J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 2838, 2015 CarswellNat 7793, 2015 FC 721, 2015 CF 721, Jocelyne Gagné J. (F.C.).

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

From ignored to a nation-to-nation relationship: Jason Madden’s 20 years advocating for Metis rights

Ontario Superior Court of Justice welcomes new judges Colin Stevenson and Gilead Kay

Ontario Superior Court upholds award of costs exceeding the damages in a personal injury case

Ontario Superior Court resolves estate dispute between siblings by passing over a sister as trustee

Erika Chamberlain steps down as dean of Western Law

Ont. CA orders new trial in pedestrian collision case due to unfair bad character evidence

Most Read Articles

Erika Chamberlain steps down as dean of Western Law

Ont. CA orders new trial in pedestrian collision case due to unfair bad character evidence

Ontario Superior Court of Justice welcomes new judges Colin Stevenson and Gilead Kay

From ignored to a nation-to-nation relationship: Jason Madden’s 20 years advocating for Metis rights