Eli Lilly Canada Inc. v. Teva Canada Limited

Eli Lilly Canada Inc. v. Teva Canada Limited

Teva, as the successful defendant at the summary trial, is entitled to its own costs; a lump sum award is appropriate to avoid burdensome assessment but elevated costs in excess of the Tariff (percentage of actual fees at 50% or 37.5% or column V) are not justified; having considered Rule 400(3) factors and the evidence, the court fixed a lump sum at an amount akin to the upper end of column IV: $80,000 (tax inclusive) plus recoverable disbursements of $44,783.77, yielding a total award of $124,783.77 (with deduction of prior hearsay award reflected).

Citation
2023 FC 782
Parties
Plaintiffs/defendants by Counterclaim: Eli Lilly Canada Inc.; Eli Lilly and Company; Lilly del Caribe, Inc.; Lilly, S.A.; ICOS Corporation; Defendant/plaintiff by Counterclaim: Teva Canada Limited
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 June 2023
Procedural Posture
Patent Infringement and Invalidity Counterclaims / Costs Determination Following Summary Trial Judgment
Outcome
Costs awarded to Teva Canada Limited following summary trial
Legal Topics
Invalidity, Overbreadth, Insufficiency, Summary Trial, Costs Award, Disbursements, Lump Sum Costs
Source Language
English
Intellectual Property Patent Law Civil Procedure Costs and Taxation Invalidity Overbreadth Insufficiency Summary Trial +3 more

Case Brief

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Parties

Eli Lilly Canada Inc.; Eli Lilly and Company; Lilly del Caribe, Inc.; Lilly, S.A.; ICOS Corporation

Plaintiffs/defendants by Counterclaim

Teva Canada Limited

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement and Invalidity Counterclaims / Costs Determination Following Summary Trial Judgment

Legal Issues

  1. 1 Which party is entitled to costs following the summary trial?
  2. 2 What form and quantum of costs are appropriate (Tariff column vs lump sum vs elevated award)?
  3. 3 Whether disbursements claimed are recoverable and reasonable

Ratio Decidendi

Teva, as the successful defendant at the summary trial, is entitled to its own costs; a lump sum award is appropriate to avoid burdensome assessment but elevated costs in excess of the Tariff (percentage of actual fees at 50% or 37.5% or column V) are not justified; having considered Rule 400(3) factors and the evidence, the court fixed a lump sum at an amount akin to the upper end of column IV: $80,000 (tax inclusive) plus recoverable disbursements of $44,783.77, yielding a total award of $124,783.77 (with deduction of prior hearsay award reflected).

Court Disposition

Costs awarded to Teva Canada Limited following summary trial

Orders

  • The costs of the hearsay motion payable to Lilly are deducted from the cost award payable to Teva on the summary trial.
  • Teva Canada Limited is awarded total costs of $124,783.77 inclusive of all fees, disbursements, and tax.