On August 2, 2010, we reported the Federal Court of Appeal’s decision between Eli Lilly and Novopharm concerning olanzapine. Novopharm moved for reconsideration of that judgment. The original order granted by the Court of Appeal set aside the order of the Federal Court, including the paragraph granting Novopharm damages pursuant to Section 8 of the Patented Medicines (Notice of Compliance) Regulations and its costs. The Court of Appeal stated that Novopharm and Lilly came to an agreement as to the quantum of costs, and that agreement was enshrined in a further Order, which was not appealed.
The Court refused Novopharm’s motion for reconsideration, however, provided some additional comments as to how the Federal Court’s judgment should be interpreted in light of the Court of Appeal’s decision. The Court of Appeal confirmed that costs were not granted to Lilly at the trial, as its order only stated that the appeal was allowed with costs. The Court of Appeal further confirmed that at present, there is no order awarding any party the costs of the trial. The Court of Appeal cannot set aside the subsequent order enshrining the amount of costs, as it was not appealed. Thus, the Trial Judge must determine what should be done (if anything) to deal with the fact that costs were assessed and paid before the costs award was set aside.
The Court of Appeal also states that the Federal Court’s order as to Section 8 damages does nothing more than confirm that Novopharm’s claim for Section 8 damages will be dealt with in the second phase of the bifurcated trial. The Federal Court of Appeal’s judgment has no effect on Novopharm’s rights to have that claim determined at that time nor does it deprive the Federal Court of its jurisdiction to determine Novopharm’s claim.