Apotex Inc. v. Eli Lilly and Company, et al.

(Federal) (Civil) (By Leave)


Intellectual property — Patents — Medicines — Judgments and orders — Interest — Respondents’ pharmaceutical patent found to be valid and infringed by applicant’s generic product — Court ordering compound interest on damages awarded — Whether novel claim for “time value of money” is valid in law — What is standard of proof required to justify claims for interest damages?


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 1997, Eli Lilly (collectively) commenced an action for patent infringement, claiming that their rights under eight patents were infringed by Apotex’s importation of bulk cefaclor for use in its medicinal product, Apo cefaclor, an antibiotic used to treat bacterial infections. In 2009, the court held that at least one valid claim in each of Eli Lilly’s patents had been infringed by Apotex. Apotex’s appeal was dismissed and its application for leave to appeal was refused.

In the quantification of damages phase of the action, Eli Lilly was awarded damages for lost profits under s. 55(1) of the Patent Act, R.S.C. 1985, c. P 4. It was also awarded compound prejudgment interest as damages for the “time value” of the lost profits over the 17 years prior to the issuance of the damages judgment. Apotex’s appeal from that decision was dismissed, except for the portion of the award dealing with the award of compound interest. That matter was remitted to the Federal Court to evaluate whether sufficient evidence existed to satisfy the burden of proof for the award of compound interest. On reconsideration, the trial judge maintained his initial award of damages in the form of compound interest. Apotex’s appeal from the second damages judgment was dismissed.

Lower Court Rulings

November 23, 2018
Federal Court of Appeal

2018 CAF 217, A-64-15
Applicant’s appeal dismissed but portion of award dealing with damages in the form of compound interest remitted to trial judge for reconsideration.
December 10, 2019
Federal Court

2019 FC 1463, T-1321-97
Original interest award upheld
July 23, 2021
Federal Court of Appeal

2021 FCA 149, A-474-19
Applicant’s appeal dismissed