Federal Court Grants Order Bifurcating Apotex' Section 8 Action

In Apotex Inc. v. Alcon Canada Inc., 2016 FC 720, Prothonotary Tabib granted Apotex' motion for bifurcation of its section 8 action involving its Apo-Travoprost Z topical ophthalmic solution.

There is an ongoing, separate action regarding the infringement and validity of Alcon's 370 Patent, one of three patents involved in the section 8 action. That proceeding had already been bifurcated between liability and quantification issues. Apotex moved to bifurcate its section 8 action so that Alcon's defences of hypothetical infringement of two other patents, and the validity of those patents, be tried before quantification.

Alcon feared that Apotex wanted bifurcation in order to move to consolidate the action for hypothetical infringement with Alcon's action for actual infringement of the 370 Patent, thus delaying the latter. At the hearing, Apotex confirmed that the request for bifurcation was not contingent upon the consolidation of those two proceedings,