Les Laboratoires Servier & Anor v Apotex Inc & Ors [2011] EWHC 730 (Pat) (29 March 2011)

Les Laboratoires Servier & Anor v Apotex Inc & Ors [2011] EWHC 730 (Pat) (29 March 2011)

A claimant cannot recover damages under a cross-undertaking in damages for being prevented from selling goods whose manufacture would have been unlawful under foreign law (here, Canadian patent law), even if the illegality is not criminal or dishonest. The ex turpi causa rule applies to prevent the court from...

Source-derived case information.

Citation
[2011] EWHC 730 (Pat)
Parties
Claimant: Les Laboratoires Servier; Claimant: Servier Laboratories Limited; Defendant: Apotex Inc; Defendant: Apotex Pharmachem Inc; Defendant: Apotex Europe Limited; Defendant: Apotex UK Limited
Jurisdiction
England and Wales
Judgment Date
29 March 2011
Procedural Posture
Patents Cross Undertaking in Damages (public Policy/illegality) / High Court (patents Court) Judgment on Public Policy Point After Remittal From Court of Appeal
Outcome
Claim for damages under the cross-undertaking in respect of sales prevented by the injunction is barred by public policy (ex turpi causa); Apotex cannot recover such damages.
Legal Topics
Cross Undertaking in Damages, Illegality Defence (ex Turpi Causa), Public Policy, Foreign Patent Infringement, Interim Injunctions
Intellectual Property Law Patent Law Civil Procedure Cross Undertaking in Damages Illegality Defence (ex Turpi Causa) Public Policy Foreign Patent Infringement Interim Injunctions

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Parties

Les Laboratoires Servier

Claimant

Servier Laboratories Limited

Claimant

Apotex Inc

Defendant

Apotex Pharmachem Inc

Defendant

Apotex Europe Limited

Defendant

Apotex UK Limited

Defendant

Procedural Posture

Patents Cross Undertaking in Damages (public Policy/illegality) / High Court (patents Court) Judgment on Public Policy Point After Remittal From Court of Appeal

Legal Issues

  1. 1 Whether a patentee who obtained an interim injunction on a subsequently invalid patent must compensate the defendant for losses sustained from being prevented from selling goods manufactured in infringement of a valid foreign patent owned by the same group (public policy/illegality)

Ratio Decidendi

A claimant cannot recover damages under a cross-undertaking in damages for being prevented from selling goods whose manufacture would have been unlawful under foreign law (here, Canadian patent law), even if the illegality is not criminal or dishonest. The ex turpi causa rule applies to prevent the court from compensating a party for loss arising from its own unlawful act, and the seriousness of the illegality or moral turpitude is not a necessary threshold. The integrity of the legal system and international comity require that the court not award damages for losses arising from acts that are unlawful in a friendly foreign jurisdiction.

Court Disposition

Claim for damages under the cross-undertaking in respect of sales prevented by the injunction is barred by public policy (ex turpi causa); Apotex cannot recover such damages.

Orders

  • Apotex's claim for damages under the cross-undertaking in respect of sales of perindopril erbumine manufactured in Canada is dismissed.