Drug: cefaclor

Eli Lilly brought suit against Apotex alleging that it infringed eight (8) process patents. The trial decision is found here. Lilly appealed the finding of noninfringement with respect to 7,500kg of material and Apotex appealed the finding of infringement with respect to the other material it imported. The Court dismissed both the appeal and cross-appeal with costs.

The Court held that Lilly’s appeal was essentially factual. The Court held that an appellate court should not reweigh the evidence and draw its own inferences, as to do so would otherwise usurp the role of the trial judge and unnecessarily burden the public and private resources.

With respect to Apotex’ cross-appeal, the Court upheld the Trial Judge’s analysis of the state of the law on the saccharine doctrine, upholding the ruling that a process patent can be infringed by the importation, use and sale of a product manufactured abroad using the patented process. This law only requires that the patented process play an important part in the manufacture of the imported product. In this case, the Court of Appeal concluded that there was no legal error in the Trial Judge’s analysis.