Eli Lilly Canada Inc. v. Apotex Inc.

Eli Lilly Canada Inc. v. Apotex Inc.

Given the technical complexity, sophistication of parties, high actual fees, and adequacy concerns with Tariff B, a lump sum in excess of the Tariff was justified; the Court adjusted Apotex's claimed fees to a reasonable level (~$1,900,000 tax inclusive) and awarded 25% of those fees plus proven disbursements ($11,763.90), deducted Lilly's hearsay award ($1,084.80), and ordered post-judgment interest at 5% starting 30 days after the Order, resulting in a total award of $485,679.10 inclusive of tax.

Citation
2023 FC 783
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: Apotex Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 June 2023
Procedural Posture
Patent Infringement and Validity Counterclaim (summary Trial) / Post Judgment Costs Assessment Following Summary Trial Judgment
Outcome
Apotex awarded costs; elevated lump sum in excess of Tariff B granted; disbursements allowed; interest awarded; hearsay costs deducted
Legal Topics
Summary Trial, Invalidity (overbreadth, Insufficiency), Costs Assessment, Lump Sum Costs, Tariff B, Post Judgment Interest
Source Language
English
Intellectual Property Patent Law Civil Procedure Costs and Disbursements Summary Trial Invalidity (overbreadth, Insufficiency) Costs Assessment Lump Sum Costs +2 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

Apotex Inc.

Defendant / Plaintiff by Counterclaim

Procedural Posture

Patent Infringement and Validity Counterclaim (summary Trial) / Post Judgment Costs Assessment Following Summary Trial Judgment

Legal Issues

  1. 1 Whether the successful defendant (Apotex) is entitled to costs
  2. 2 Whether elevated lump sum costs in excess of Tariff B are justified
  3. 3 Appropriate quantum of costs and disbursements

Ratio Decidendi

Given the technical complexity, sophistication of parties, high actual fees, and adequacy concerns with Tariff B, a lump sum in excess of the Tariff was justified; the Court adjusted Apotex's claimed fees to a reasonable level (~$1,900,000 tax inclusive) and awarded 25% of those fees plus proven disbursements ($11,763.90), deducted Lilly's hearsay award ($1,084.80), and ordered post-judgment interest at 5% starting 30 days after the Order, resulting in a total award of $485,679.10 inclusive of tax.

Court Disposition

Apotex awarded costs; elevated lump sum in excess of Tariff B granted; disbursements allowed; interest awarded; hearsay costs deducted

Orders

  • The costs of the hearsay motion payable to Lilly are deducted from the costs award payable to Apotex.
  • Apotex is awarded total costs of $485,679.10 inclusive of all fees, disbursements and tax.