FCA Imposes "Could And Would" Test To Assess Non-Infringing Alternative

The Federal Court of Appeal has released its reasons in the appeal of Justice Snider’s lovastatin damages decision. Justice Snider awarded Merck $119 million, plus interest, as damages for Apotex’s infringement of Merck’s patent covering its lovastatin product. The FCA dismissed Apotex’s appeal (copy available here).

The primary issue on appeal was whether a non-infringing alternative (NIA) can be considered in law when calculating a patentee’s damages for infringement. Taking a bold step away from established Canadian law, the FCA found that a NIA can be so considered.  However, the Court imposed a strict test requiring that the infringer both could and would have used the NIA had it not used the infringing product.