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Case information

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39851

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

(Federal) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2022-03-10 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2022-03-10 Judgment on leave sent to the parties
2022-03-10 Close file on Leave
2022-03-10 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Federal Court of Appeal, Number A-474-19, 2021 FCA 149, dated July 23, 2021, is dismissed with costs.
Dismissed, with costs
2022-02-07 All materials on application for leave submitted to the Judges, for consideration by the Court
2021-12-02 Certificate (on limitations to public access), 23B Apotex Inc.
2021-11-29 Applicant's reply to respondent's argument, (Book Form), Require: 23B rec'd on 2021-12-02, Completed on: 2022-01-06, (Printed version due on 2021-12-06) Apotex Inc.
2021-11-19 Certificate (on limitations to public access), (Letter Form), (Included in the certificate (on limitations to public access)), 23B, (Printed version due on 2021-11-26) Eli Lilly and Company
2021-11-19 Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2021-11-26) Eli Lilly and Company
2021-11-19 Notice of name, (Letter Form), (Printed version due on 2021-11-26) Eli Lilly and Company
2021-11-19 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2021-11-30, (Printed version filed on 2021-11-19) Eli Lilly and Company
2021-10-21 Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2021-10-21
2021-09-28 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2021-11-26) Apotex Inc.
2021-09-28 Certificate (on limitations to public access), (Letter Form), 23A, (Printed version filed on 2021-11-26) Apotex Inc.
2021-09-28 Notice of name, (Letter Form), (Printed version filed on 2021-11-26) Apotex Inc.
2021-09-28 Application for leave to appeal, (Book Form), Completed on: 2021-09-28, (Printed version filed on 2021-11-26) Apotex Inc.

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Apotex Inc. Applicant Active

v.

Main parties - Respondents
Name Role Status
Eli Lilly and Company Respondent Active
Eli Lilly Canada Inc. Respondent Active

Counsel

Party: Apotex Inc.

Counsel
Harry B. Radomski
Jordan Scopa
Goodmans LLP
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Telephone: (416) 597-4142
Email: hradomski@goodmans.ca
Agent
Christopher C. Rootham
Nelligan O'Brien Payne LLP
50 O'Connor
Suite 300
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8212
FAX: (613) 238-2098
Email: christopher.rootham@nelliganlaw.ca

Party: Eli Lilly and Company

Counsel
Anthony G. Creber
Marc Richard
Adam Heckman
Gowling WLG (Canada) LLP
Suite 2600, Box 466
160 Elgin Street - Stn. D.
Ottawa, Ontario
K1P 1C3
Telephone: (613) 232-1781
FAX: (613) 563-9869
Email: Anthony.creber@gowlingwlg.com
Agent
Jeffrey W. Beedell
Gowling WLG (Canada) LLP
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com

Party: Eli Lilly Canada Inc.

Counsel
Anthony G. Creber
Marc Richard
Adam Heckman
Gowling WLG (Canada) LLP
Suite 2600, Box 466
160 Elgin Street - Stn. D.
Ottawa, Ontario
K1P 1C3
Telephone: (613) 232-1781
FAX: (613) 563-9869
Email: Anthony.creber@gowlingwlg.com
Agent
Jeffrey W. Beedell
Gowling WLG (Canada) LLP
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com

Summary

Keywords

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?

Summary

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

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

Not available

Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

Downloadable PDFs

Not available

Webcasts

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Date modified: 2025-05-21