Adir v. Apotex Inc.

Adir v. Apotex Inc.

The Court exercised its discretion to award the Plaintiffs (Servier Canada Inc. and ADIR) 90% of their taxed costs to be assessed at the upper range of Column IV of Tariff B, allowed specific recoveries (2 senior and 1 junior counsel; 50% of a paralegal's fees; reasonable expert fees for testifying experts who assisted counsel) denied recovery for experts not called and for Apotex's claimed costs relating to proving regulatory/experimental use exemption, and deferred other reasonableness determinations to the assessment officer.

Citation
2008 FC 1070
Parties
Plaintiff (defendant by Counterclaim): ADIR; Plaintiff (defendant by Counterclaim): SERVIER CANADA INC.; Defendant (plaintiff by Counterclaim): APOTEX INC.; Defendant (plaintiff by Counterclaim): APOTEX PHARMACHEM INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
23 September 2008
Procedural Posture
Patent Infringement / Post Trial Costs Determination
Outcome
Plaintiffs (Servier Canada Inc. and ADIR) awarded their costs against the Defendants; costs to be taxed at the upper range of Column IV of Tariff B and the total award to be reduced by 10%.
Legal Topics
Costs, Infringement, Validity, Expert Evidence, Discovery, Regulatory and Experimental Use Exemption
Source Language
English
Intellectual Property Patent Law Civil Procedure Competition Law Costs Infringement Validity Expert Evidence +2 more

Case Brief

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Parties

ADIR

Plaintiff (defendant by Counterclaim)

SERVIER CANADA INC.

Plaintiff (defendant by Counterclaim)

APOTEX INC.

Defendant (plaintiff by Counterclaim)

APOTEX PHARMACHEM INC.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Patent Infringement / Post Trial Costs Determination

Legal Issues

  1. 1 Entitlement to costs and allocation between parties
  2. 2 Appropriate tariff and column for assessment (Column IV upper end)
  3. 3 Effect of partial success by defendant on costs award

Ratio Decidendi

The Court exercised its discretion to award the Plaintiffs (Servier Canada Inc. and ADIR) 90% of their taxed costs to be assessed at the upper range of Column IV of Tariff B, allowed specific recoveries (2 senior and 1 junior counsel; 50% of a paralegal's fees; reasonable expert fees for testifying experts who assisted counsel) denied recovery for experts not called and for Apotex's claimed costs relating to proving regulatory/experimental use exemption, and deferred other reasonableness determinations to the assessment officer.

Court Disposition

Plaintiffs (Servier Canada Inc. and ADIR) awarded their costs against the Defendants; costs to be taxed at the upper range of Column IV of Tariff B and the total award to be reduced by 10%.

Orders

  • The Plaintiffs (Servier Canada Inc. and ADIR) are to have their costs throughout against the Defendants, such costs to be taxed at the upper range of Column IV of Tariff B and in accordance with the directions contained in these reasons.
  • The total award is then to be reduced by 10%.