Canada's Federal Court Of Appeal Upholds C$180 Million Judgment In Favour Of Merck Against Apotex In A Landmark Patent Damages Ruling

In a Judgment released July 23, 2015, the Federal Court of Appeal upheld the Federal Court's award of more than C$180 million in damages and interest for Apotex's infringement of Merck's Canadian lovastatin patent. In this decision, the Federal Court of Appeal reversed the Trial Judge and held that the availability of a non-infringing alternative ("NIA") is relevant under Canadian law but held that Apotex could not have and would not have deployed it.

Background

This litigation between Merck and Apotex dates back to 1997 when Merck sued Apotex for infringing its patent covering a process for making the first-approved cholesterol lowering statin, called lovastatin, which was marketed in Canada and around the world as MEVACOR®.

In 2010, Merck prevailed at trial (2010 FC 1265). The Trial Judge found that Apotex had infringed Merck's patent on a massive scale by selling generic Apo-lovastatin between 1997 and 2001 despite its undertaking to Merck and Health Canada that it would manufacture lovastatin using a non-infringing process. Apotex's appeal...