Apotex Inc. v. Eli Lilly and Co.

Apotex Inc. v. Eli Lilly and Co.

Molnlycke does not categorically preclude claims under s.45 arising from agreements involving patent rights where there is evidence of conduct beyond the mere assignment or exercise of those rights; the motions judge erred in applying Molnlycke so broadly, and the pleadings and counterclaim against Shionogi must be...

Source-derived case information.

Citation
2004 FCA 232
Parties
Appellant (defendant/plaintiff by Counterclaim): Apotex Inc.; Respondents (plaintiffs/defendants by Counterclaim): Eli Lilly and Company; Eli Lilly Canada Inc.; Respondent (defendant by Counterclaim): Shionogi & Co. Ltd.
Court
Federal Court of Appeal
Jurisdiction
Canada
Judgment Date
14 June 2004
Procedural Posture
Patent Infringement With Competition Act Counterclaim / Appeal From Federal Court Motions Judge Concerning Summary Judgment and Striking of Pleadings
Outcome
Appeals allowed in part; motions for summary judgment set aside and remitted; prothonotary's order striking pleadings reinstated in part; counterclaim against Shionogi reinstated
Legal Topics
Assignment of Patent Rights, Section 45 Competition Act (undue Lessening of Competition), Section 36 Damages, Section 32 Competition Act, Summary Judgment, Cause of Action/pleadings
Source Language
english
Competition Law Patent Law Civil Procedure Assignment of Patent Rights Section 45 Competition Act (undue Lessening of Competition) Section 36 Damages Section 32 Competition Act Summary Judgment +1 more

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Parties

Apotex Inc.

Appellant (defendant/plaintiff by Counterclaim)

Eli Lilly and Company; Eli Lilly Canada Inc.

Respondents (plaintiffs/defendants by Counterclaim)

Shionogi & Co. Ltd.

Respondent (defendant by Counterclaim)

Procedural Posture

Patent Infringement With Competition Act Counterclaim / Appeal From Federal Court Motions Judge Concerning Summary Judgment and Striking of Pleadings

Legal Issues

  1. 1 Whether a patent assignment or related agreement can constitute an agreement that unduly lessens competition under s.45 of the Competition Act
  2. 2 Whether Molnlycke precludes all s.45 claims based on exercise or assignment of patent rights
  3. 3 Whether Apotex's pleadings disclose a reasonable cause of action against Shionogi

Ratio Decidendi

Molnlycke does not categorically preclude claims under s.45 arising from agreements involving patent rights where there is evidence of conduct beyond the mere assignment or exercise of those rights; the motions judge erred in applying Molnlycke so broadly, and the pleadings and counterclaim against Shionogi must be reinstated and the summary judgment motions remitted for further consideration of whether s.45 can apply and whether the facts meet its threshold.

Court Disposition

Appeals allowed in part; motions for summary judgment set aside and remitted; prothonotary's order striking pleadings reinstated in part; counterclaim against Shionogi reinstated

Orders

  • Appeals from the motions judge's summary judgment decisions allowed
  • Appeal from Prothonotary Aronovitch dismissed (her order refusing to strike the counterclaim should not have been overturned)