Damages

Damages are pecuniary losses suffered by the plaintiff resulting from the
infringement of the patent, which may take the form of lost profits on sales,
etc. or royalty payments.

May 9, 2017

Apotex’s Claims for Damages for Delayed Market Entry Allowed to Proceed

2017 ONSC 224 - Apotex sought compensation from Eli Lilly for damages suffered for delayed entry to the market for its generic version of olanzapine; the ONSC ordered Eli Lilly to pay Apotex a total of $20,000.
April 25, 2017

Federal Court finds foreign, non-exclusive licensee entitled to damages

2016 FC 593 - The FC awarded Janssen Canada and Janssen US almost $19 million in total damages for Teva's infringement of a Japanese entity's patent, for which Janssen US had never even exercised its licence in Canada.
August 8, 2016

Knowledge of Related Patents not “Actual Knowledge” for Awarding Pre-Issuance Damages

In U.S. patent infringement, the “actual notice” requirement in 35 USC § 154(d) requires actual knowledge of a published patent application. Knowledge of related patents, even those sharing a description, and indirect references to a published patent application in emails may not be sufficient to prove actual notice.
February 10, 2016

FCA Endorses Non-Infringing Alternatives as a Relevant to Patent Damages

2015 FCA 171 - The FCA determined that it is relevant to damages whether the infringer had a non-infringing alternative that it could have used.
September 8, 2015

Federal Court Revisits Schmeiser Differential Method for Calculating Profits

ADIR v Apotex Inc, 2015 FC 721 - In an accounting of profits case, the FC stated that if a non-infringing alternative is to be considered, it “cannot be what one would have done had one complied with the law”.
July 22, 2013

FC Rules Non-Infringing-Alternative Defence Does Not Impact the Calculation of Damages

Merck & Co., Inc. v. Apotex Inc. – 2013 FC 751 This action involved determining the quantum of damages to be awarded to Merck for infringement […]
March 15, 2013

ONSC Issues Reasons for Temporarily Staying Apotex’s Damages Action against Sanofi

Apotex Inc. v. Schering Corporation, 2013 ONSC 1411 Sanofi brought a motion for an order striking Apotex’s statement of claim, or in the alternative, a stay […]