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ARTICLE · 28 DECEMBER 2018

FCA Overturns Cefaclor Damages Decision On Prejudgment Interest Issue, Provides Guidance On NIA Defence

Smart & Biggar
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On November 23, 2018, the Federal Court of Appeal (FCA) allowed in part Apotex's appeal of a decision awarding Eli Lilly over $100 million for Apotex's infringement of eight process patents ...

CanadaLitigation, Mediation & Arbitration
Smart & Biggar
Smart & Biggar
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On November 23, 2018, the Federal Court of Appeal (FCA) allowed in part Apotex's appeal of a decision awarding Eli Lilly over $100 million for Apotex's infringement of eight process patents related to the antibiotic cefaclor: Apotex v Eli Lilly, 2018 FCA 217. The Federal Court (FC, decision reported here) had awarded Eli Lilly roughly $31 million in damages for infringement and $75 million in prejudgment interest as damages for the time value of the money lost in the 17 years that elapsed before the reference trial on damages took place. The FCA remitted the decision to the FC for reconsideration solely on the issue of interest. The Court also provided guidance regarding the application and objective of the non-infringing alternative (NIA) defence.

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