PM(NOC) Damages Archives

August 22, 2017

Federal Court of Appeal remits decision based on hearsay evidence back to the Federal Court for redetermination

2016 FCA 161 - The FCA remitted a proceeding back to the FC for redetermination after agreeing with Pfizer that part of Teva’s evidence in the FC decision was based on hearsay.

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.

February 3, 2017

Does the Patent Act provide a “complete code” of remedies? ONSC allows the argument to proceed that it may not

2016 ONSC 7193 - The ONSC heard pleadings by Apotex and Pfizer concerning Pfizer’s, now invalid, patent for Viagra. Apotex had previously been prevented from manufacturing its own generic because of the Viagra patent, and now claimed damages for the delay in being able to market its own variant. The appeal was dismissed and Apotex’s claim was allowed to proceed unstruck.

October 6, 2016

Pharmaceutical Patentees Could Face More than 100% of Actual Damages under PM(NOC) Regulations

2014 FCA 68 - Innovator pharmaceutical companies should be cautious and think twice about how aggressively they defend their patents as they could potentially face paying more than 100% of actual damages as an award under section 8 of the PM(NOC) Regulations.

May 26, 2014

Federal Court Grants Motion for Bifurcating Determination of Start of Liability Period under s. 8 of the PM(NOC) Regulations

Apotex Inc v Pfizer Canada Inc, 2014 FC 159 - The Court confirmed that bifurcation of a PM(NOC) proceeding is not limited to liability/damages, and held that “[i]t is open to the Court to bifurcate any issue which will result in the saving of time, cost and judicial resources.” The issue need not be a threshold issue determinative of the proceedings.

March 21, 2014

FCA Upholds Trial Court Ruling that Availability of Compensation under s. 8 of the NOC Regulations Is a Question of Fact

Sanofi-Aventis Canada Inc v Teva Canada Limited - 2014 FCA 69 - The Court stated that whether there can be recovery for unauthorized indications under section 8 of the PM(NOC) Regulations is a question of fact, and that the purpose of section 8 damages is to compensate generics for a delay caused by NOC Proceedings.

March 21, 2014

FCA Upholds Rejection of Sanofi’s Motion to Amend Its Statement of Defence

Sanofi-Aventis Canada Inc v Teva Canada Limited - 2014 FCA 65 - The Court dismissed Sanofi’s appeal to amend its statement of defence in a PM(NOC) proceeding. It is not sufficient that allowing the amendment would not be unjust. What is required is that any injustice to the other party is capable of being compensated by an award of costs and the interest of justice must be served.

March 10, 2014

FCA Dismisses Pfizer’s Appeal Challenging Admissibility and Weight of Apotex Expert’s Testimony

Pfizer Canada Inc v Apotex Inc, 2014 FCA 54 - The Court rejected Pfizer's argument that the trial judge did not properly apply the R. v. J.-L.J., 2000 SCC 51 case when assessing the admissibility of what Pfizer alleged were novel scientific theories put forth by Apotex’s expert.

December 23, 2013

FC Changes Approach to Double Ramp Up

Apotex Inc. v Takeda Canada Inc. 2013 FC 1237 Background This is an application under section 8 of the PM(NOC) process dealing with lost revenue […]

August 14, 2013

FC Holds the Liability Phase of a Bifurcated Trial Is Concluded Even If Judge Defers Deciding Some Liability Issues to the Quantification Phase

Eli Lilly Canada Inc. v. Novopharm Limited – 2013 FC 677 Per Prothonotary Tabib: In this motion Teva sought to amend its Statement of Defence and […]

May 29, 2013

PM(NOC): s. 8 Issues Circumscribed by Antecedent s. 6 Proceeding; s. 6 Claim Construction Binding on s. 8 Proceeding in Absence of Strong Reason to the Contrary

Apotex Inc. v Pfizer Canada Inc. – 2013 FC 493 Apotex claimed damages under s. 8 of the PM(NOC) Regulations on grounds that it incurred a […]

March 13, 2013

Ongoing Infringement Trial Not Grounds for ex turpi causa Argument to Delay Determination of s. 8 Damages under the PM(NOC) Regulations

AstraZeneca Canada Inc. v. Apotex Inc., 2013 FCA 77 AstraZeneca appeals the trial court’s decision in a proceeding commenced by Apotex under s. 8 of the […]

February 27, 2013

Ont. Div. Ct. Reinforces Unavailability of Equitable Disgorgement under S. 8 of PM(NOC) Regs

Apotex Inc. v. Eli Lilly, 2013 ONSC 1135 (Div. Ct.) Lilly sought leave to appeal from a decision of Justice J. Macdonald of the Ontario Superior […]

January 22, 2013

No Equitable Disgorgement of a Pharma Innovator’s Profits in Ontario, Absent a Cause of Action Independent of the Operation of s. 8 of the PM(NOC) Regulations

Apotex Inc. v. Abbott Laboratories Limited, 2013 ONSC 356 In this case, Apotex claimed damages against Abbott Laboratories and Takeda Pharmaceuticals based on unjust enrichment. On […]