Eli Lilly Canada Inc. v. Novopharm Limited

Eli Lilly Canada Inc. v. Novopharm Limited

Amendments that introduce or expand liability issues after the liability phase of the bifurcated trial (including new Trade‑Marks Act causes of action and changes to the start date or identity of the "first person" for s.8 relief) are to be treated as post‑trial amendments and are refused because they would reopen closed evidence, cause irremediable prejudice and are not in the interests of justice; amendments confined strictly to quantification may be allowed only if they are reasonably arguable, confined to the originally pleaded s.8 period (February 9, 2006 to June 6, 2007) and include full particulars and material facts supporting causation and attribution.

Citation
2013 FC 677
Parties
Plaintiff (defendant by Counterclaim): ELI LILLY CANADA INC.; Plaintiff (defendant by Counterclaim): ELI LILLY AND COMPANY; Plaintiff (defendant by Counterclaim): ELI LILLY AND COMPANY LIMITED; Plaintiff (defendant by Counterclaim): ELI LILLY SA; Defendant (plaintiff by Counterclaim): NOVOPHARM LIMITED (Teva Canada Limited)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
18 June 2013
Procedural Posture
Patent/regulatory (pm(noc)) Action With Counterclaim and Proposed Trade‑marks Claim / Motion to Amend Pleadings After First Phase of Bifurcated Trial and Before Second‑phase Discoveries
Outcome
Motion dismissed with leave to reapply under conditions
Legal Topics
Section 8 Pm(noc) Damages, Bifurcation of Trial, Amendment of Pleadings Post‑trial, Quantification of Damages, Issue Estoppel, Trade‑marks Act Ss.7(a) and 22
Source Language
English
Patent Law Regulatory Law (pm(noc)) Trade‑marks Law Civil Procedure Remedies Section 8 Pm(noc) Damages Bifurcation of Trial Amendment of Pleadings Post‑trial +3 more

Case Brief

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Parties

ELI LILLY CANADA INC.

Plaintiff (defendant by Counterclaim)

ELI LILLY AND COMPANY

Plaintiff (defendant by Counterclaim)

ELI LILLY AND COMPANY LIMITED

Plaintiff (defendant by Counterclaim)

ELI LILLY SA

Plaintiff (defendant by Counterclaim)

NOVOPHARM LIMITED (Teva Canada Limited)

Defendant (plaintiff by Counterclaim)

Procedural Posture

Patent/regulatory (pm(noc)) Action With Counterclaim and Proposed Trade‑marks Claim / Motion to Amend Pleadings After First Phase of Bifurcated Trial and Before Second‑phase Discoveries

Legal Issues

  1. 1 Whether amendments that raise new liability issues after the liability phase of a bifurcated trial may be permitted
  2. 2 Whether proposed Trade‑Marks Act causes of action can be introduced after the first trial
  3. 3 Whether amendments that alter the start/end dates or identity of the "first person" for s.8 relief are permissible post‑trial

Ratio Decidendi

Amendments that introduce or expand liability issues after the liability phase of the bifurcated trial (including new Trade‑Marks Act causes of action and changes to the start date or identity of the "first person" for s.8 relief) are to be treated as post‑trial amendments and are refused because they would reopen closed evidence, cause irremediable prejudice and are not in the interests of justice; amendments confined strictly to quantification may be allowed only if they are reasonably arguable, confined to the originally pleaded s.8 period (February 9, 2006 to June 6, 2007) and include full particulars and material facts supporting causation and attribution.

Court Disposition

Motion dismissed with leave to reapply under conditions

Orders

  • Teva's motion to amend is dismissed with leave to reapply
  • Teva may serve a new proposed amended statement of defence and counterclaim in accordance with the reasons and Lilly shall have 14 days from service to advise whether it consents; on consent the amended pleading may be filed without further order