Astrazeneca Canada Inc v. Apotex Inc

Astrazeneca Canada Inc v. Apotex Inc

Leave to amend was granted because Apotex had pleaded an NIA defence from the outset and the proposed changes merely expanded the formulations relied upon rather than adding a new defence; AstraZeneca failed to prove non-compensable prejudice or that the amendments would derail the trial schedule; applying the liberal amendment principles and considering fairness and interests of justice, the amendments (except paragraph 46(d), which was withdrawn) should be permitted.

Citation
2016 FC 865
Parties
Plaintiff (defendant by Counterclaim in T 1409 04): AstraZeneca Canada Inc.; Plaintiff (defendant by Counterclaim in T 1409 04): Aktiebolaget Hässle; Plaintiff (in T 1890 11): AstraZeneca AB; Defendant (plaintiff by Counterclaim): Apotex Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 July 2016
Procedural Posture
Patent Infringement Reference Into Damages or Accounting of Profits Under Canadian Letters Patent No. 1,292,693 / Pre Trial: Motion to Amend Responding Statement of Issues Ahead of a 30 Day Reference Starting January 16, 2017
Outcome
Motion granted in part: Apotex granted leave to deliver a Fresh as Amended Responding Statement of Issues in the form sought, excluding the withdrawn paragraph 46(d).
Legal Topics
Non Infringing Alternatives, Amendment of Pleadings, Reference for Damages or Accounting of Profits, Discovery and Expert Testing, Pre Trial Procedural Fairness
Source Language
English
Intellectual Property Patent Law Civil Procedure Non Infringing Alternatives Amendment of Pleadings Reference for Damages or Accounting of Profits Discovery and Expert Testing Pre Trial Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

AstraZeneca Canada Inc.

Plaintiff (defendant by Counterclaim in T 1409 04)

Aktiebolaget Hässle

Plaintiff (defendant by Counterclaim in T 1409 04)

AstraZeneca AB

Plaintiff (in T 1890 11)

Apotex Inc.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Patent Infringement Reference Into Damages or Accounting of Profits Under Canadian Letters Patent No. 1,292,693 / Pre Trial: Motion to Amend Responding Statement of Issues Ahead of a 30 Day Reference Starting January 16, 2017

Legal Issues

  1. 1 Whether Apotex should be permitted to amend its NIA (non-infringing alternative) plea to add additional formulations
  2. 2 Whether the amendment constitutes a new defence or merely expands evidence for an existing defence
  3. 3 Whether the amendment would cause injustice or non-compensable prejudice to AstraZeneca

Ratio Decidendi

Leave to amend was granted because Apotex had pleaded an NIA defence from the outset and the proposed changes merely expanded the formulations relied upon rather than adding a new defence; AstraZeneca failed to prove non-compensable prejudice or that the amendments would derail the trial schedule; applying the liberal amendment principles and considering fairness and interests of justice, the amendments (except paragraph 46(d), which was withdrawn) should be permitted.

Court Disposition

Motion granted in part: Apotex granted leave to deliver a Fresh as Amended Responding Statement of Issues in the form sought, excluding the withdrawn paragraph 46(d).

Orders

  • Apotex is granted leave to deliver a Fresh as Amended Responding Statement of Issues in the form set out in Schedule A to its Amended Notice of Motion, except for the proposed amendments to paragraph 46(d) which were withdrawn.
  • Apotex shall not be awarded costs of this motion.