Les Laboratoires Servier & Anor v Apotex Inc & Ors [2008] EWHC 2347 (Ch) (9 October 2008)

Les Laboratoires Servier & Anor v Apotex Inc & Ors [2008] EWHC 2347 (Ch) (9 October 2008)

The appropriate measure of compensation under the cross-undertaking is the profit Apotex would have made had it not been restrained by the injunction, assessed by reconstructing the hypothetical market. The court found that, but for the injunction, Apotex would have enjoyed a duopoly or near-duopoly with Servier during the 'at risk' period, resulting in substantial profits. The likelihood of other generics entering the market during this period was discounted as speculative. The court rejected Servier's argument that the market would have become open sooner and accepted Apotex's evidence as to likely market share and pricing, subject to reasonable adjustments. The assessment is...

Citation
[2008] EWHC 2347 (Ch)
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
09 October 2008
Procedural Posture
Patent Infringement and Cross Undertaking in Damages / Post Trial, Assessment of Damages Following Discharge of Interim Injunction
Outcome
Compensation awarded to Apotex under the cross-undertaking in damages for losses caused by the interim injunction.
Legal Topics
Patent Validity, Interim Injunctions, Cross Undertaking in Damages, Assessment of Equitable Compensation, Market Entry for Generics
Intellectual Property Pharmaceutical Law Equity Patent Validity Interim Injunctions Cross Undertaking in Damages Assessment of Equitable Compensation Market Entry for Generics

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 5
Sign in to unlock

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

Patent Infringement and Cross Undertaking in Damages / Post Trial, Assessment of Damages Following Discharge of Interim Injunction

Legal Issues

  1. 1 What is the appropriate measure of compensation under the cross-undertaking in damages following the discharge of an interim injunction restraining market entry of a generic pharmaceutical?
  2. 2 What hypothetical market scenario would have occurred but for the injunction?
  3. 3 How should the court assess lost profits and market share in the context of pharmaceutical generics and patent litigation?

Ratio Decidendi

The appropriate measure of compensation under the cross-undertaking is the profit Apotex would have made had it not been restrained by the injunction, assessed by reconstructing the hypothetical market. The court found that, but for the injunction, Apotex would have enjoyed a duopoly or near-duopoly with Servier during the 'at risk' period, resulting in substantial profits. The likelihood of other generics entering the market during this period was discounted as speculative. The court rejected Servier's argument that the market would have become open sooner and accepted Apotex's evidence as to likely market share and pricing, subject to reasonable adjustments. The assessment is...

Court Disposition

Compensation awarded to Apotex under the cross-undertaking in damages for losses caused by the interim injunction.

Orders

  • Servier to pay Apotex compensation for lost profits during the period of the injunction, amount to be assessed as per the judgment's methodology.