Apotex Inc. v. Astrazeneca Canada
Inc., 2013 FCA
47

Apotex is the defendant to an
infringement action brought by AstraZeneca. In the course of that proceeding,
AstraZeneca, pursuant to Rule 249 of the Federal Court Rules,
successfully moved for the production of samples of Apotex’s esomeprazole
magnesium bulk, blends, tablet cores, finished tablets and other related
materials for destructive testing.

Apotex appeals from the FC decision
which upheld the previous order by Prothonotary Aronovitch, who found that “the
proposed sampling is necessary and expedient in order to allow AstraZeneca to
adduce its own independent evidence to support and make its case on
infringement.”

Appeal is dismissed.

The Court dismissed Apotex’s
argument that the lower courts erred by not considering that AstraZeneca 1) led
no evidence that the order sought would not prejudice Apotex, and 2) had
another course of action available: it could have emulated Apotex’s
manufacturing process or accessed marketed tablets for testing.