Largest Patent Infringement Award in Canada Stands: Apotex Denied Leave to Appeal to the SCC

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On April 14, 2016, the Supreme Court of Canada denied Apotex’s final attempt at obtaining leave to appeal in the storied patent battle between Merck and Apotex over Merck’s lovastatin patent.

The case began in 1997 when Apotex launched its generic lovastatin product. At the liability trial in 2010, Justice Judith Snider of the Federal Court found Merck’s lovastatin patent to be valid and infringed (2010 FC 1265). The judgment included reference to DNA evidence establishing that Apotex had infringed through its operations in Winnipeg. The Judge also found that Apotex’s joint venture partner fabricated batch records and testimony regarding how the lovastatin was made. The Federal Court of Appeal affirmed the Trial Judge’s ruling (2011 FCA 363), and Apotex’s application for leave to appeal to the Supreme Court was dismissed.

In the subsequent damages trial, Justice Judith Snider ordered Apotex to pay over $180 million in compensatory damages and interest (2013 FC 751); the largest reported Canadian damages award for patent infringement.

Apotex’s appeal was later dismissed, in 2015, by a unanimous panel of the Federal Court of Appeal (2015 FCA 171). This decision is important for a number of reasons. For example, the so-called “non-infringing alternative” defence was recognized in Canada for the first time; however, Apotex was unable to support it on the facts. For more information on this appellate ruling see our previous blog.

On April 14, 2016, the Supreme Court of Canada dismissed Apotex’s applications for leave to appeal. This ruling represents the final chapter in an almost 20 year-old patent case.

McCarthy Tétrault was counsel to Merck throughout, at all trials and appeals

Apotex damages lovastatin Merck



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