In this case, Apotex has sued Eli Lilly for damages pursuant to s. 8 of the Patented Medicines (Notice of Compliance) Regulations. Eli Lilly brought a motion to strike portions of the Statement of Claim. That motion was granted in part, but mostly denied (here summarized here). By this motion, Eli Lilly sought leave to appeal that decision. The Court granted leave in part.
The Court was satisfied that there is reason to doubt the correctness of the Motion Judge’s decision not to strike those portions of the claim relating to profits based on unjust enrichment. Furthermore, there are issues of general importance raised in the decision as it relates to all innovator and generic companies involved in NOC Proceedings, and if the Motion Judge’s decision is left to stand, it could lead to undesirable forum shopping to the extent it differs from the jurisprudence of the Federal Court. However, with respect to those parts of the claim relating to damages pursuant to the Trade-Marks Act, the Court held that there were no decisions in conflict with the Motion Judge’s decision, and thus it was proper for the claim to remain in suit.