Apotex Inc. v. H. Lundbeck A/S

Apotex Inc. v. H. Lundbeck A/S

Leave to amend was granted: adding Apotex Pharmachem Inc. as a defendant is in the interests of justice because the proposed claim is prima facie meritorious, intimately connected to the existing infringement claim, and avoids multiplicity and contradictory judgments; Lundbeck did not unduly delay and any prejudice can be mitigated by conditions. The motion for bifurcation was dismissed because Lundbeck undertook to abandon claims for damages and to limit monetary relief to an accounting of profits (and punitive/exemplary damages), making quantification of profits achievable within the existing timetable and not warranting severance.

Citation
2012 FC 414
Parties
Plaintiff/defendant by Counterclaim: Apotex Inc.; Defendant/plaintiff by Counterclaim: H. Lundbeck A/S
Court
Federal Court
Jurisdiction
Canada
Judgment Date
11 April 2012
Procedural Posture
Patent Infringement / Pm(noc) Proceedings / Case Management (motions to Amend Pleadings and for Bifurcation)
Outcome
Motion to amend granted with conditions; motion for bifurcation dismissed.
Legal Topics
Amendment of Pleadings, Bifurcation, Damages Vs Accounting of Profits, Pm(noc) Regulations, Prejudice and Delay
Source Language
English
Intellectual Property Patent Law Civil Procedure Amendment of Pleadings Bifurcation Damages Vs Accounting of Profits Pm(noc) Regulations Prejudice and Delay

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Parties

Apotex Inc.

Plaintiff/defendant by Counterclaim

H. Lundbeck A/S

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement / Pm(noc) Proceedings / Case Management (motions to Amend Pleadings and for Bifurcation)

Legal Issues

  1. 1 Whether Lundbeck should be granted leave to amend its Statement of Defence and Counterclaim to add Apotex Pharmachem Inc.
  2. 2 Whether the quantification of damages or accounting of profits should be bifurcated and heard after determination of validity and infringement
  3. 3 Whether delay in seeking amendment prejudices Apotex and cannot be compensated by conditions or costs

Ratio Decidendi

Leave to amend was granted: adding Apotex Pharmachem Inc. as a defendant is in the interests of justice because the proposed claim is prima facie meritorious, intimately connected to the existing infringement claim, and avoids multiplicity and contradictory judgments; Lundbeck did not unduly delay and any prejudice can be mitigated by conditions. The motion for bifurcation was dismissed because Lundbeck undertook to abandon claims for damages and to limit monetary relief to an accounting of profits (and punitive/exemplary damages), making quantification of profits achievable within the existing timetable and not warranting severance.

Court Disposition

Motion to amend granted with conditions; motion for bifurcation dismissed.

Orders

  • Leave granted to H. Lundbeck A/S to amend its Statement of Defence and Counterclaim to add Apotex Pharmachem Inc. as an additional defendant.
  • Amendment permitted on conditions including that Lundbeck undertake to abandon any claim for damages and limit monetary relief to an accounting of profits and punitive/exemplary damages to the extent available.