On June 2, 2017, the Supreme Court dismissed Apotex’s application for leave to appeal the decision finding that AstraZeneca’s Canadian Patent No. 1,292,693 was valid and infringed by Apotex’s manufacture, sale, and promotion of Apo-Omeprazole capsules.
Case: Apotex Inc v AstraZeneca Canada Inc, et al (SCC Docket: 37478)
Drug: LOSEC® (omeprazole)
Nature of case: Appeal from validity and infringement action under the Patent Act, RSC 1985, c P-4 (Patent Act)
Appellant: Apotex Inc. (Apotex)
Respondents: AstraZeneca Canada Inc., AstraZeneca AB and Aktiebolaget Hässle (collectively AstraZeneca)
Date of decision: June 2, 2017
Federal Court of Appeal decision
As we reported, the Federal Court of Appeal agreed with the Federal Court’s findings on construction, validity and infringement, and affirmed that a patent need only describe a single method or process for making the claimed invention. However, the FCA overturned the Federal Court’s decision on the applicable limitation periods, and held that, as the 693 patent is covered by the pre-1989 Patent Act, provincial statutory limitations would apply to any “cause of action arising in that province” instead of the six-year federal limitation period. The FCA also dismissed AstraZeneca’s cross-appeal on punitive damages.
Links to decisions:
SCC Decision: Apotex Inc v AstraZeneca Canada Inc et al, Supreme Court of Canada – Judgments in Leave Applications (37478)
FCA Decision: Apotex Inc v Astrazeneca Canada Inc, 2017 FCA 9
Trial Decision: Astrazeneca Canada Inc v Apotex Inc, 2015 FC 322 and Astrazeneca Canada Inc v Apotex Inc, 2015 FC 671 (amended judgment)