Lilly commenced an action for patent infringement, and Novopharm, by way of counterclaim, brought an action for damages pursuant to s 8 of the Patented Medicines (Notice of Compliance) Regulations. The counterclaim was bifurcated. At trial, the patent was found invalid, and Novopharm was found entitled to relief under section 8. Damages have not been quantified. Novopharm brought the within motion seeking a Mareva injunction, preventing Lilly from transferring its revenues to its parent company or in the alternative, requiring Lilly to post security for damages.
The Court found that it has jurisdiction to issue this injunction where liability has been found, but the quantum not yet determined. After setting out the requirements for a Mareva injunction, the Court noted that Novopharm has not provided any undertakings as to damages, which is one of the requirements. The Court rejected Novopharm’s arguments, and dismissed the motion. In particular, the Court noted that it was not certain that Lilly will have to pay damages to Novopharm in light of the circumstances of the case.