Summary

Keywords

Intellectual property – Patents – Medicines – Civil procedure – Parties – Standing – Limitations of actions – Can a foreign corporation which does nothing requiring a license under a Canadian patent, and which does not have a license, claim damages as a person “claiming under a patentee”? – Must a person claiming damages for permanent lost market establish that permanent loss of market occurred after intervening limitation period?

Summary

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(SEALING ORDER)

Levofloxacin is an antimicrobial drug marketed in Canada by Janssen Inc. (“Janssen Canada”) under the brand name “Levaquin” and is primarily used to treat serious respiratory tract infections. Daiichi Sankyo Company, Limited, a Japanese-based pharmaceutical company, owns Canadian Patent No. ‘080 which claims levofloxacin. Janssen Canada is licensed by Daiichi to sell levofloxacin in Canada. Teva Canada Limited launched its generic version of the drug, Novo-levofloxacin, in November, 2004. On October 17, 2006, the Federal Court enjoined the sale of Novo-levofloxacin in Canada, finding that the ‘080 Patent was valid and was infringed by Teva when it sold products containing levofloxacin in Canada. The judgment of the Federal Court was affirmed on appeal and leave to appeal was refused by the Supreme Court of Canada. At the subsequent damages trial, the Federal Court ordered Teva to pay damages to Janssen Canada in the amount of $5,498,270.00, and to pay damages to Janssen Pharmaceuticals, Inc. (“Janssen US”) in the amount of $13,342,949.00. It found that Janssen US was part of the supply chain that marketed Levaquin in Canada. Teva’s appeal from the damages and the costs orders was dismissed.

Lower Court Rulings