Eli Lilly Canada Inc. v. Mylan Pharmaceuticals ULC.

Eli Lilly Canada Inc. v. Mylan Pharmaceuticals ULC.

The Court exercised its broad discretionary power under Rule 400 to award an elevated lump-sum costs award because the 684 Patent litigation was complex, costly and between sophisticated parties, Mylan provided sufficient docket and invoice evidence (with justified redactions) to establish adjusted fees of approximately $2,241,814, and a 30% award of those fees together with reasonable disbursements (reduced to $118,583.79) was proportionate; the Court therefore awarded Mylan total costs of $878,218.00 inclusive of fees, disbursements and tax, with post-judgment interest at 2% from the date of the Order.

Citation
2023 FC 13
Parties
Plaintiffs/defendants by Counterclaim: Eli Lilly Canada Inc.; Eli Lilly and Company; Lilly del Caribe, Inc.; Lilly, S.A.; ICOS Corporation; Defendant/plaintiff by Counterclaim: Mylan Pharmaceuticals ULC
Court
Federal Court
Jurisdiction
Canada
Judgment Date
6 January 2023
Procedural Posture
Patent Litigation (costs Assessment Re Canadian Letters Patent No. 2,371,684) / Post Judgment Costs Motion Under Federal Courts Rules 400 and 403
Outcome
Costs awarded to Defendant/Plaintiff by counterclaim Mylan Pharmaceuticals ULC in part; motion for costs otherwise denied
Legal Topics
Costs Award, Lump Sum Costs, Tariff B Assessment, Disbursements, Post Judgment Interest, Obviousness, Anticipation
Source Language
English
Intellectual Property Patent Law Civil Procedure Costs and Litigation Funding Costs Award Lump Sum Costs Tariff B Assessment Disbursements +3 more

Case Brief

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Parties

Eli Lilly Canada Inc.; Eli Lilly and Company; Lilly del Caribe, Inc.; Lilly, S.A.; ICOS Corporation

Plaintiffs/defendants by Counterclaim

Mylan Pharmaceuticals ULC

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Litigation (costs Assessment Re Canadian Letters Patent No. 2,371,684) / Post Judgment Costs Motion Under Federal Courts Rules 400 and 403

Legal Issues

  1. 1 Whether elevated lump-sum costs in excess of Tariff B are justified
  2. 2 Appropriate percentage of actual legal fees to award as lump sum
  3. 3 Whether each defendant in consolidated proceedings is entitled to separate cost awards

Ratio Decidendi

The Court exercised its broad discretionary power under Rule 400 to award an elevated lump-sum costs award because the 684 Patent litigation was complex, costly and between sophisticated parties, Mylan provided sufficient docket and invoice evidence (with justified redactions) to establish adjusted fees of approximately $2,241,814, and a 30% award of those fees together with reasonable disbursements (reduced to $118,583.79) was proportionate; the Court therefore awarded Mylan total costs of $878,218.00 inclusive of fees, disbursements and tax, with post-judgment interest at 2% from the date of the Order.

Court Disposition

Costs awarded to Defendant/Plaintiff by counterclaim Mylan Pharmaceuticals ULC in part; motion for costs otherwise denied

Orders

  • Mylan is awarded total costs of $878,218.00 inclusive of all fees, disbursements, and tax with post-judgment interest at a rate of 2 per cent from the date of this Order.
  • No costs are awarded on this Motion.