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Merck v Apotex T-1272-97 Public Reasons for Patent Damages Judgment

Merck v Apotex T-1272-97 Public Reasons for Patent Damages Judgment

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Published by barry sookman
Merck v Apotex T-1272-97 Public Reasons for Patent Damages Judgment
Merck v Apotex T-1272-97 Public Reasons for Patent Damages Judgment

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Categories:Types, Business/Law
Published by: barry sookman on Jul 17, 2013
Copyright:Attribution Non-commercial


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Date: 20130716Docket: T-1272-97Citation: 2013 FC 751BETWEEN:MERCK & CO., INC. ANDMERCK CANADA INC.Plaintiffs(Defendants byCounterclaim)andAPOTEX INC. ANDAPOTEX FERMENTATION INC.Defendants(Plaintiffs byCounterclaim)PUBLIC REASONS FOR JUDGMENT(Confidential Reasons for Judgment released July 5, 2013)SNIDER J.I. Introduction
[1] In an action commenced on June 12, 1997, the Plaintiffs sought a declaration thatCanadian Patent No. 1,161,380 ('380 Patent) was valid and infringed by the Defendants. On November 14, 2003, the action was bifurcated, meaning that the appropriate damages or accounting of profits would only be determined after the liability phase (Order of Prothonotary
Page: 2Aronovitch dated November 14, 2003, as amended on November 20, 2003). The liability trialcommenced on February 1, 2010 before me and concluded on May 21, 2010. In
Merck & Co v Apotex Inc
, 2010 FC 1265, 91 CPR (4th) 1 [
 Liability Reasons
] aff’d 2011 FCA 363, 102 CPR (4th) 321, I found that the '380 Patent was valid and had been infringed by the Defendants andthat the Plaintiffs were entitled to their damages rather than to an accounting of profits (
 Liability Reasons
, above at para 624). The damages phase of this matter began on April 8, 2013 andconcluded on May 3, 2013. During this phase of the proceedings, I heard evidence from four factwitnesses and one expert witness, followed by three days of final argument. These Reasons for Judgment deal with the quantum of damages to be paid to the Plaintiffs.[2] In brief and for the reasons that follow, I have concluded that the Plaintiffs are entitled toa total damages award of $119,054,327, plus pre-judgment and post-judgment interest,comprised of:
$62,925,126 as lost profits of Merck Canada Inc. (Merck Canada), in respect of Pre-Expiry Replacement Sales (defined below);
$51,290,364 as lost profits of Merck & Co. Inc. (Merck US), in respect of Pre-Expiry Replacement Sales;
], based on a reasonable royalty calculation, for post-expiry infringingdomestic sales; and
Page: 3
], based on a reasonable royalty calculation, for infringing export sales.[3] In addition, I have made the following determinations:
Merck should not be awarded its lost profits (if any) or a reasonable royalty inrespect of Post-Expiry Ramp-up Sales;
Merck is not entitled to “lost royalties” that would have been earned by Merck and Company, Incorporated (MACI) on additional sales of MEVACOR tablets;
Apotex’s argument that its non-infringing alternative should be taken into accountin assessing damages is rejected; and
Pre-judgment interest should be calculated at a rate equal to the 1997 Bank Rate plus 1% and post-judgment interest at a rate of 5%.[4] In these Reasons, unless otherwise expressed, all monetary figures are expressed asCanadian dollars.

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