"Plain And Obvious" That Innovators’ Profits Are Not Available To Generics In Ontario

On September 12, 2013, the Ontario Court of Appeal upheld the Superior Court's dismissal of Apotex's claim for disgorgement of Takeda's and Abbott's profits in the context of the Patented Medicines (Notice of Compliance) Regulations (the "NOC Regulations").  The Ontario Court had previously dismissed motions to strike such claims on the basis that it was not "plain and obvious" that they could not succeed.  In contrast, by upholding the underlying summary judgement, the Ontario Court of Appeal has confirmed and clarified the law. 

The Divisional Court has been swift to apply the Court of Appeal's decision.  In a case decided on September 19, 2013 involving another Apotex claim for disgorgement ("Eli Lilly") the Divisional Court followed Takeda & Abbott and, in a decision delivered from the bench, reversed the Court belowand struck Apotex's claim for disgorgement of profits against Eli Lilly.