CaseAdir and Servier Canada Inc v Apotex Inc and Apotex Pharmachem Inc, 2015 FC 721

Drug: COVERSYL® (perindopril)

Nature of case: Accounting of profits quantification after a finding of infringement

Successful party: Adir and Servier Canada Inc.

Date of decision: Public Judgment: June 18, 2015

Summary

Apotex Inc. (Apotex) and Apotex Pharmachem Inc. (Pharmachem) have been ordered by the Federal Court to pay to Adir and Servier Canada Inc. (collectively Servier) within 60 days a combined total of Canadian $61 million plus interest.  These were found to be the profits of Apotex and Pharmachem for their making, using and selling of perindopril tablets in Canada and for export sales to the U.K., Europe and Australia which infringed Servier`s Canadian patent.

Norton Rose Fulbright Canada LLP represented Adir and Servier Canada Inc. in both the liability phase and the quantification of profits.

Background

In 2008, Snider J. issued a liability trial judgment which held that Servier`s Canadian Patent No. 1,341,196 was valid and infringed by Apotex and Pharmachem (2008 FC 825; affirmed 2009 FCA 222; leave to appeal to the SCC dismissed). The Court awarded Servier an election of its damages or the profits of Apotex and Pharmachem. Servier elected to pursue the Defendants’ profits.

There was also some interplay between the Canadian case and parallel litigation in the U.K. on a related patent.  

Trial to quantify the profits of Apotex and Pharmachem to be paid

Apotex presented a defence which sought to segregate and deduct substantial profits under Transfer Price Agreements with the U.K. and Australia as being indemnification for non-infringing legal services and risk.  This was dismissed by the trial judge.  Apotex and Pharmachem also argued for the reduction of their profits payable because of the alleged availability of non-infringing alternatives.  Trial Judge Gagné dismissed the application of this defence on the law and, alternatively, based on her appreciation of the evidence.

Defendants’ motion for stay of execution was denied.  The Court also refused to accept many of the redactions that had been requested by Apotex and Pharmachem of information on financial matters and the intercompany relationships contained in the judgment.

Apotex and Pharmachem have filed a Notice of Appeal (A-315-15).

Link to decision:

Adir and Servier Canada Inc. v. Apotex Inc. and Apotex Pharmachem Inc., 2015 FC 721