Eli Lilly and Company v. Apotex Inc.

Eli Lilly and Company v. Apotex Inc.

The Court held that Shionogi's August 8, 2008 offer met the requirements to trigger Rule 420 for the Competition Counterclaim and awarded Shionogi a doubled party-to-party fee premium for the relevant period (fixed at $519,000) plus agreed disbursements; Apotex was ordered to pay forthwith stated lump sums to Eli Lilly of $464,110.60 for the Competition Counterclaim and $1,554,929.60 for the main action for the period ending April 4, 2008; assessment of costs after April 4, 2008 was deferred until a final quantum is fixed; Apotex's request that Eli Lilly indemnify it for Shionogi costs if Eli Lilly's recovery proved lower was denied.

Citation
2011 FC 1143
Parties
Plaintiff / Defendant by Counterclaim: Eli Lilly and Company; Plaintiff / Defendant by Counterclaim: Eli Lilly Canada Inc.; Defendant / Plaintiff by Counterclaim: Apotex Inc.; Defendant by Counterclaim: Shionogi & Co. Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
6 October 2011
Procedural Posture
Patent Infringement Action With Competition Act Counterclaim / Costs Determination Post Judgment (order on Costs and Disbursements)
Outcome
Apotex ordered to pay specified lump sum costs and disbursements to Shionogi and Eli Lilly forthwith; further assessment of costs for the period after April 4, 2008 deferred pending final quantum determination
Legal Topics
Infringement, Costs Awards, Offers to Settle (rule 420), Settlement Negotiations, Counterclaim, Bifurcation
Source Language
English
Patent Law Competition Law Civil Procedure Costs Law Infringement Costs Awards Offers to Settle (rule 420) Settlement Negotiations +2 more

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Parties

Eli Lilly and Company

Plaintiff / Defendant by Counterclaim

Eli Lilly Canada Inc.

Plaintiff / Defendant by Counterclaim

Apotex Inc.

Defendant / Plaintiff by Counterclaim

Shionogi & Co. Ltd.

Defendant by Counterclaim

Procedural Posture

Patent Infringement Action With Competition Act Counterclaim / Costs Determination Post Judgment (order on Costs and Disbursements)

Legal Issues

  1. 1 Whether settlement offers triggered Rule 420 premium for costs
  2. 2 Whether offers remained open to the relevant trial on the counterclaim
  3. 3 Proper quantum and method of assessing costs for both the Competition Counterclaim and the main patent action

Ratio Decidendi

The Court held that Shionogi's August 8, 2008 offer met the requirements to trigger Rule 420 for the Competition Counterclaim and awarded Shionogi a doubled party-to-party fee premium for the relevant period (fixed at $519,000) plus agreed disbursements; Apotex was ordered to pay forthwith stated lump sums to Eli Lilly of $464,110.60 for the Competition Counterclaim and $1,554,929.60 for the main action for the period ending April 4, 2008; assessment of costs after April 4, 2008 was deferred until a final quantum is fixed; Apotex's request that Eli Lilly indemnify it for Shionogi costs if Eli Lilly's recovery proved lower was denied.

Court Disposition

Apotex ordered to pay specified lump sum costs and disbursements to Shionogi and Eli Lilly forthwith; further assessment of costs for the period after April 4, 2008 deferred pending final quantum determination

Orders

  • Apotex shall pay to Shionogi a lump sum of $519,000.00 plus the full amount of disbursements agreed to between the parties
  • Apotex shall pay to Eli Lilly an all inclusive lump sum of $464,110.60 for costs in the Competition Counterclaim