Largest Patent Infringement Award In Canada Stands: Apotex Denied Leave To Appeal To The SCC

Today, the Supreme Court of Canada denied Apotex's final attempt at obtaining leave to appeal in the storied patent battle between Merck and Apotex over Merck's lovastatin patent.

The case began in 1997 when Apotex launched its generic lovastatin product. At the liability trial in 2010, Justice Judith Snider of the Federal Court found Merck's lovastatin patent to be valid and infringed (2010 FC 1265). The judgment included reference to DNA evidence establishing that Apotex had infringed through its operations in Winnipeg. The Judge also found that Apotex's joint venture partner fabricated batch records and testimony regarding how the lovastatin was made. The Federal Court of Appeal affirmed the Trial Judge's ruling (2011 FCA 363), and Apotex's application for leave to appeal to the Supreme Court was dismissed.

In the subsequent damages trial, Justice Judith Snider ordered Apotex to pay over $180 million in compensatory damages and interest (2013 FC 751); the largest reported Canadian damages award for patent infringement.

Apotex's appeal was later dismissed, in 2015, by a unanimous panel of the Federal Court of Appeal (2015 FCA 171). This...