• Dismissal of Motion to Vary Trial Decision in S. 8 case due to Later Infringement Finding Upheld on Appeal
  • August 3, 2016 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • AstraZeneca Canada Inc. v. Apotex Inc., 2016 FCA 194

    AstraZeneca has appealed a decision on its motion seeking to vary a judgment in a decision on the merits of a section 8 case. Damages were awarded to Apotex pursuant to s. 8 of the Patented Medicines (Notice of Compliance) Regulations. In that proceeding, AstraZeneca raised the defence that no damages should be awarded because Apotex infringed an AstraZeneca patent. That defence was rejected. However, the Judge held: "...A Court hearing the pending infringement action, if it concludes that the patent is valid and has been infringed by Apotex in making the omeprazole drug that is the subject of these proceedings, can at that time craft a remedy that is appropriate, having in mind any compensation awarded in these proceedings."

    The Court below dismissed the motion to vary, holding that the "only thing that has now happened is that the 'might happen' scenario considered by me and the Court of Appeal has become a reality. That makes no difference. The 'reality' has already been considered and a determination made. Nothing changes." The FCA agreed with this reasoning.

    The Court below also held that the proper venue for AstraZeneca's motion was the FCA because the FCA had upheld the trial decision. The FCA disagreed with this finding, holding that the person best placed to decide whether newly discovered matters would have affected the original judgment is the original decision maker.

    The FCA reiterated the difficulties that ensue when inconsistent findings are made in parallel infringement and s. 8 proceedings, and repeated a previous FCA statement that it will be up to the judge hearing the infringement action to ensure that a party is compensated, on proper principles for a provable loss, no more and no less.