Litigation Strategy Defines Large Cost Award In Pharma Patent Infringement Case

Despite usually being deferred until after trial, cost considerations should seldom be an afterthought. Each party's litigation strategy from the start of the case will often dictate the costs ultimately awarded. Potential cost consequences should therefore be a relevant consideration of each strategic decision. This is particularly true in the context of pharmaceutical litigation where stakes can be high. A recent decision of the Chief Justice of the Federal Court of Canada emphasizes this point. In Allergan Inc. v. Sandoz Canada Inc., 2021 FC 186 (“Rapaflo”), the Court's $384,505.69 cost order against Allergan for its unsuccessful patent infringement claim, was ultimately defined by each party's chosen course of action in the underlying proceeding.