Astrazeneca Canada Inc. v. Apotex Inc., 2015 FC 671 (Barnes, J.)
July 15, 2015
Gunars Gaikis, Nancy Pei, and Urszula Wojtyra of Smart & Biggar for the Plaintiffs Astrazeneca Canada Inc. and Aktiebolaget Hässle
Harry Radomski and Daniel Cappe of Goodmans LLP for the Defendant Apotex Inc.
This is a summary of a Rule 397 motion to vary, brought by the parties, to modify terms of the previously issued March 16, 2015 Judgment (2015 FC 322) regarding a patent infringement action dealing with omeprazole. In that Judgment, Apotex was held to have infringed the patent. Rule 397 allows for changes to an Order if the Order fails to conform with the reasons given, or to address issues overlooked or accidentally omitted.
The term "Apo-Omeprazole" had been used to describe Apotex's infringing composition. "Apo-Omeprazole" is a Canadian trade name for Apotex's omeprazole product. It refers to capsules which contain infringing omeprazole pellets. Some of the infringing pellets were sold in Canada as Apo-Omeprazole, others were sold in other countries under different trade names. AstraZenaca sought to revise the Order, and the Court agreed, such that referrences to Apo-Omeprazole were changed to references to "its omeprazole capsule products, including its coated omeprazole pellets", thereby including pellets sold outside of Canada and product sold in non-capsule form.
The Judgment was also amended regarding damages, adding that the plaintiffs are entitled to elect either profits or damages, that the Plaintiffs' claim for punitive damages is dismissed, and that other issues related to damages are to be adjudicated in accordance with previously issued Bifurcation Orders and a related Direction.
By: Greg Beach, Belmore Neidrauer