Pharma In Brief - Canada: Federal Court Reduces Claim For Section 8 Damages Based On Defence Of Ex Turpi Causa [MEVACOR® (lovastatin)]

Case: Apotex Inc. v. Merck Frosst Canada Ltd.

Nature of case: PM(NOC) Regulations - Section 8 damages

Date of decision: May 23, 2012

Summary

On May 23, 2012, the Federal Court held that Merck Frosst Canada Ltd. ("Merck") is liable to Apotex Inc. ("Apotex") for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations (the "Regulations"), but exercised its discretion to reduce the amount of compensation payable based on a defence of ex turpi causa.

On March 26, 1997, the Federal Court made an order dismissing Merck's application for a prohibition order under section 6 of the Regulations in respect of the drug MEVACOR (lovastatin), without addressing the substantive issue of whether Apotex's product would infringe. Apotex subsequently sued Merck for damages under section 8 of the Regulations. At trial, the Federal Court (per Snider J.) held that Apotex was not entitled to make a claim for section 8 damages under the 1993 version of the Regulations. The Federal Court of Appeal set aside that decision on...