Sanofi-Aventis v. Apotex Inc., 2013 FCA 209

Drug: clopidogrel

Sanofi-Aventis had previously been successful in its appeal of a patent infringement decision (decision here; our summary here). Sanofi-Aventis brought the within motion to vary the portion of the judgement relating to liability for infringement. Sanofi-Aventis argued that the decision of the trial judge implicitly made a finding of infringement by using Apotex to refer to both Apotex and Pharmachem. Sanofi-Aventis argued that the FCA overlooked this finding and erred in its interpretation of the trial judge’s reasons.

The FCA held whether Sanofi-Aventis is right, this is neither an oversight nor an accidental omission, nor is it a clerical error, mistake or omission. Rule 397 does not authorize the FCA to revise its understanding of the Trial Judge’s reasons after judgment has been rendered. Thus, this part of the motion was dismissed. The part of the judgment relating to a second defendant was revised, as the claim against that defendant had been dropped prior to trial, and the FCA held it was an oversight to include them.