As we reported, Abbott Laboratories Limited, Takeda Pharmaceuticals Company Limited and Takeda Pharmaceuticals America Inc. sought dismissal of Apotex's action for s. 8 damages in the Ontario Superior Court by summary judgment. The Ontario Court of Appeal (ONCA) affirmed the lower court's finding that a real-world notice of non-compliance – withdrawal (NON-W) issued by Health Canada did not operate to void the patent hold letter ab initio. The ONCA held it was open to the motions judge to accept "essentially unrefuted" expert evidence that in the hypothetical but-for world Health Canada would have issued Apotex its Notice of Compliance as of its patent hold date and that Health Canada would not have suspended or revoked the Notice of Compliance in the absence of exceptional circumstances.
The Court of Appeal found no palpable and overriding error in the judge's decision, as there was evidence that supported the judge's conclusions.
NON-W Could Impact Quantum of Damages
The motions judge invited evidence at trial on whether the NON-W would interrupt Apotex's sales in the but-for world, and the ONCA agreed it will be open to the trial judge to consider the relevance of Apotex's real-world NON-W on the quantum of damages.
Link:
Apotex Inc v Abbott Laboratories Limited, 2018 ONCA 332
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.
Law around the world
nortonrosefulbright.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.