The Federal Court of Appeal has upheld a decision to strike a claim by a generic for the "permanent loss of market share" caused as a result of being delayed entry into the market by proceedings that were commenced by the innovator under the Patented Medicines (Notice of Compliance) Regulations.

The Court relied upon their earlier decision in Apotex Inc. v. Merck & Co., 2009 FCA 187 where the same type of claim was struck. The Court agreed that a generic may claim damages resulting from loss of market share, but only for losses actually incurred within the period of liability defined in s. 8(1) of the Regulations.

In dissent, Justice Sharlow stated that she would have reconsidered the interpretation of s. 8 adopted in Merck, and felt that generics should not be barred from asserting the claim merely because the quantification of the loss necessarily takes into account an estimate of sales that would be made after the end of the period of liability.

The full text of the decision can be found at:

http://decisions.fca-caf.gc.ca/en/2011/2011fca149/2011fca149.html