Late last month, the Federal Court of Appeal released its long-awaited decision in Apotex Inc. v. Eli Lilly and Co., 2018 FCA 217. In the underlying litigation, the Federal Court awarded damages to Eli Lilly because Apotex had infringed Eli Lilly’s patented process for making a cephalosporin antibiotic.
Overall, the decision provides clarification about the Federal Court’s approach to a diverse range of issues which can arise in accounting of profits cases. Moreover, the decision is the latest demonstration of the Federal Court’s willingness to consider flexible approaches to procedural and substantive issues to enable just and expeditious outcomes.
On June 30, 2017, the Supreme Court of Canada, released a landmark patent decision (2017 SCC 36) abolishing Canada’s so-called ‘Promise Doctrine’ by finding it “unsound”, “not good law” and “incongruent with the both the words and scheme of the Patent Act.”