David Yi

ONCA upholds dismissal of summary judgment in lansoprazole s. 8 case

By David Yi, Randy Sutton and Pharma in Brief team on April 19, 2018 Posted in Intellectual property, Pharmaceuticals and life sciences

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 … Continue reading

Change in utility law not a factor in s. 8 damages

By David Yi, Louisa Pontrelli and Pharma in Brief team on April 10, 2018 Posted in Intellectual property, Pharmaceuticals and life sciences

The Federal Court of Appeal (FCA) has refused to apply the “special circumstances” exception to issue estoppel in view of a change in law arising from the rejection of the “promise doctrine” in AstraZeneca Canada Inc v Apotex Inc, 2017 SCC 36 (NEXIUM, reported here). Noting any injustice to Lilly is “entirely commercial in nature” … Continue reading

Section 8 liability offset by patent infringement in esomeprazole case

By David Yi and Pharma in Brief team on March 27, 2018 Posted in Intellectual property, Pharmaceuticals and life sciences

The Federal Court denied Apotex’s section 8 claim relating to esomeprazole on the basis that its product would have infringed a valid AstraZeneca patent. This aligns with a previous decision of the court that placed significant weight on patent infringement in the context of section 8 damages (reported here). There was no dispute that Apotex’s … Continue reading

Ontario Superior Court denies pleading amendments based on Supreme Court of Canada’s rejection of promise doctrine in ramipril damages action

By David Yi and Pharma in Brief team on February 15, 2018 Posted in Intellectual property, Pharmaceuticals and life sciences

As we reported, Federal Court jurisprudence is being continually reshaped by the Supreme Court’s decision in AstraZeneca Canada Inc. v. Apotex Inc., 2017 SCC 36 (NEXIUM Decision). In Apotex v. Schering Corporation, 2018 ONSC 903, the Ontario Superior Court has now considered the impact of the NEXIUM Decision in the context of Apotex’s action for … Continue reading

FCA Limits Scope of Dutch Industries and Declines to Invalidate Patent on the Basis of Administrative Non-Compliance with Patent Act in latanoprost s. 8 case

By David Yi on October 12, 2017 Posted in Intellectual property

Pfizer Canada Inc. successfully resisted Apotex’s appeal of the Federal Court’s dismissal of Apotex’s motion for summary judgment for invalidity based on a failure to pay the correct “final fee” owing prior to patent grant. The Federal Court of Appeal upheld the lower court’s decision and held that alleged infringers of a patent cannot rely … Continue reading

Apotex disentitled to section 8 recovery on the basis of patent infringement in omeprazole case

By David Yi, Kristin Wall and Pharma in Brief team on September 17, 2017 Posted in Intellectual property, Pharmaceuticals and life sciences

For the first time, the Federal Court has disentitled compensation pursuant to section 8 of the Regulations on the basis of infringement of a patent. This holding was also based on the court’s finding that Apotex would not have had an available non-infringing alternative (NIA) at any point during the period of infringement (September 5, … Continue reading