Apotex Inc. v. Merck & Co. Inc.

Apotex Inc. v. Merck & Co. Inc.

The judge held that the defendants' claimed costs were excessive but that the plaintiff's late consent and resulting need for defendants to prepare for a contested hearing justified a significant but reduced award; applying the upper end of Column III of Tariff B for two counsel, the court fixed costs at $20,000 plus disbursements payable forthwith.

Citation
2006 FC 13
Parties
Plaintiff (defendant by Counterclaim): APOTEX INC.; Defendants (plaintiffs by Counterclaim): MERCK & CO., INC. and MERCK FROSST CANADA & CO.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
5 January 2006
Procedural Posture
Patent Infringement; Accounting of Profits / Costs Determination Following Summary Judgment on Entitlement to Accounting of Profits
Outcome
Costs awarded to defendants in reduced fixed amount
Legal Topics
Accounting of Profits, Summary Judgment, Costs Assessment, Discovery
Source Language
English
Intellectual Property Patent Law Civil Procedure Costs Accounting of Profits Summary Judgment Costs Assessment Discovery

Case Brief

Summary, issues, holding and outcome

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Parties

APOTEX INC.

Plaintiff (defendant by Counterclaim)

MERCK & CO., INC. and MERCK FROSST CANADA & CO.

Defendants (plaintiffs by Counterclaim)

Procedural Posture

Patent Infringement; Accounting of Profits / Costs Determination Following Summary Judgment on Entitlement to Accounting of Profits

Legal Issues

  1. 1 Whether the defendants' claimed costs were reasonable and payable given the nature of the summary judgment motion
  2. 2 What quantum of fixed costs is appropriate for a summary judgment motion brought with the plaintiff's last‑minute consent
  3. 3 Whether the plaintiff's conduct (late consent and scheduling delays) warrants a higher costs award to the defendants

Ratio Decidendi

The judge held that the defendants' claimed costs were excessive but that the plaintiff's late consent and resulting need for defendants to prepare for a contested hearing justified a significant but reduced award; applying the upper end of Column III of Tariff B for two counsel, the court fixed costs at $20,000 plus disbursements payable forthwith.

Court Disposition

Costs awarded to defendants in reduced fixed amount

Orders

  • The plaintiff shall pay to the defendants fixed costs in the amount of $20,000, payable forthwith, plus the disbursements set out in the defendants' Bill of Costs.