Eli Lilly and Co. v. Apotex Inc.

Eli Lilly and Co. v. Apotex Inc.

Where an agreement deals exclusively with patent rights and is specifically authorized by the Patent Act (s.50), any resulting increase in market power is not an 'undue' lessening of competition under s.45 of the Competition Act; therefore Apotex's s.36 claim based solely on the patent assignment fails and must be dismissed on summary judgment.

Citation
2004 FC 1445
Parties
Plaintiff (defendants by Counterclaim): Eli Lilly and Company; Eli Lilly Canada Inc.; Defendant (plaintiff by Counterclaim): Apotex Inc.; Defendant by Counterclaim: Shionogi & Co. Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
20 October 2004
Procedural Posture
Patent Infringement Action With Competition Act Counterclaim / Motions for Summary Judgment (decision on Pleadings and Summary Judgment)
Outcome
Motions for summary judgment allowed in favour of Lilly and Shionogi; relevant defence and counterclaim paragraphs struck and counterclaim against Shionogi dismissed; costs awarded to Lilly and Shionogi.
Legal Topics
Section 45 Competition Act, Assignment of Patents, Summary Judgment, Damages Under Section 36, Research and Development Exemption
Source Language
English
Competition Law Patent Law Civil Procedure Antitrust Section 45 Competition Act Assignment of Patents Summary Judgment Damages Under Section 36 +1 more

Case Brief

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 4 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Eli Lilly and Company; Eli Lilly Canada Inc.

Plaintiff (defendants by Counterclaim)

Apotex Inc.

Defendant (plaintiff by Counterclaim)

Shionogi & Co. Ltd.

Defendant by Counterclaim

Procedural Posture

Patent Infringement Action With Competition Act Counterclaim / Motions for Summary Judgment (decision on Pleadings and Summary Judgment)

Legal Issues

  1. 1 Whether s.45 of the Competition Act can apply to agreements involving exercise or assignment of patent rights
  2. 2 Whether the assignment of Shionogi patents to Lilly unduly lessened competition contrary to s.45
  3. 3 Whether defences (statute of limitations, absence of damages, research and development exemption) bar recovery under s.36

Ratio Decidendi

Where an agreement deals exclusively with patent rights and is specifically authorized by the Patent Act (s.50), any resulting increase in market power is not an 'undue' lessening of competition under s.45 of the Competition Act; therefore Apotex's s.36 claim based solely on the patent assignment fails and must be dismissed on summary judgment.

Court Disposition

Motions for summary judgment allowed in favour of Lilly and Shionogi; relevant defence and counterclaim paragraphs struck and counterclaim against Shionogi dismissed; costs awarded to Lilly and Shionogi.

Orders

  • Motions allowed with costs
  • Paragraphs 18 to 22 and 26 of the statement of defence and paragraphs 105 to 112(b) of the counterclaim against Lilly are struck out