Leave to Appeal Granted re Disgorgement of Profits in Ontario S 8 Claim

Apotex Inc v Eli Lilly / atomoxetine, 2013 ONSC 1135 Ducharme J granting leave to appeal re 2012 ONSC 3808

The FCA has held that disgorgement of the patentee’s profits is not available as a remedy in a claim under s 8 of the NOC Regulations: 2011 FCA 358 blogged here. Apotex has turned to the Ontario courts to seek this remedy in two separate actions. In Apotex v Eli Lilly / atomoxetine 2012 ONSC 3808, MacDonald J dismissed a motion to strike such a claim. Earlier, in Apotex v Takeda and Abbott Labs / lansoprazole 2010 ONSC 6909, Whitaker J also dismissed a motion to strike such a claim (aff’d 2011 ONSC 3988 (Div Ct) blogged here), but then in the decision on the merits, 2013 ONSC 356, Quigley J dismissed Apotex’s claim for disgorgement in a summary judgment (blogged here). In the most recent development, the Divisional Court has granted leave to appeal of Macdonald J’s refusal to strike Apotex’s claim for disgorgement of Lilly’s profits in the atomoxetine case, relying in large part on the conflict between the decisions of Macdonald J and Quigley J. Presumably Apotex is also appealing Quigley J’s decision on the merits in the lansoprazole litigation. One way or the other, the stage is set for a definitive statement from the Ontario courts on this issue.