Apotex Inc. v. Nycomed Canada Inc.

Apotex Inc. v. Nycomed Canada Inc.

Leave to amend to plead contributory infringement was denied because contributory infringement is not a reasonable cause of action in light of the established inducement test which requires but‑for influence by the alleged inducer, a requirement inconsistent with pleading only partial responsibility; Monsanto's...

Source-derived case information.

Citation
2011 FC 1441
Parties
Plaintiff: Apotex Inc.; Defendant / Plaintiff by Counterclaim: Nycomed Canada Inc.; Plaintiff by Counterclaim: Nycomed GMBH; Plaintiff / Defendant by Counterclaim: Novopharm Limited
Court
Federal Court
Jurisdiction
Canada
Judgment Date
9 December 2011
Procedural Posture
Patent Infringement Counterclaim Amendment / Appeal From Prothonotary Decision (leave to Amend Denied)
Outcome
Appeal dismissed; Prothonotary Milczynski's decisions of December 13, 2010 affirmed
Legal Topics
Contributory Infringement, Inducement, Leave to Amend, Standard of Review, Knowledge Standard
Source Language
english
Patent Law Intellectual Property Civil Procedure Contributory Infringement Inducement Leave to Amend Standard of Review Knowledge Standard

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Apotex Inc.

Plaintiff

Nycomed Canada Inc.

Defendant / Plaintiff by Counterclaim

Nycomed GMBH

Plaintiff by Counterclaim

Novopharm Limited

Plaintiff / Defendant by Counterclaim

Procedural Posture

Patent Infringement Counterclaim Amendment / Appeal From Prothonotary Decision (leave to Amend Denied)

Legal Issues

  1. 1 Whether contributory infringement is a recognized cause of action in Canada
  2. 2 Whether Nycomed should be granted leave to amend counterclaims to plead contributory infringement and an objective knowledge standard
  3. 3 Whether the Supreme Court's purposive approach in Monsanto displaces the established inducement test

Ratio Decidendi

Leave to amend to plead contributory infringement was denied because contributory infringement is not a reasonable cause of action in light of the established inducement test which requires but‑for influence by the alleged inducer, a requirement inconsistent with pleading only partial responsibility; Monsanto's purposive statements do not displace the inducement test.

Court Disposition

Appeal dismissed; Prothonotary Milczynski's decisions of December 13, 2010 affirmed

Orders

  • Appeals dismissed with costs to Apotex and Novopharm respectively
  • Prothonotary Milczynski's December 13, 2010 decisions refusing leave to amend are affirmed