Case: Adir and Servier Canada Inc v Apotex
Inc and Apotex Pharmachem Inc, 2015 FC 721
Drug: COVERSYL® (perindopril)
Nature of case: Accounting of profits
quantification after a finding of infringement
Successful party: Adir and Servier Canada
Date of decision: Public Judgment: June 18,
Apotex Inc. (Apotex) and Apotex Pharmachem Inc.
(Pharmachem) have been ordered by the Federal
Court to pay to Adir and Servier Canada Inc. (collectively
Servier) within 60 days a combined total of
Canadian $61 million plus interest. These were found to be the
profits of Apotex and Pharmachem for their making, using and
selling of perindopril tablets in Canada and for export sales to
the U.K., Europe and Australia which infringed Servier`s Canadian
Norton Rose Fulbright Canada LLP represented Adir and Servier
Canada Inc. in both the liability phase and the quantification of
In 2008, Snider J. issued a liability trial judgment which held
that Servier`s Canadian Patent No. 1,341,196 was valid and
infringed by Apotex and Pharmachem (2008 FC 825; affirmed 2009 FCA 222; leave to appeal to the SCC
dismissed). The Court awarded Servier an election of its damages or
the profits of Apotex and Pharmachem. Servier elected to pursue the
There was also some interplay between the Canadian case and
parallel litigation in the U.K. on a related patent.
Trial to quantify the profits of Apotex and Pharmachem to be
Apotex presented a defence which sought to segregate and deduct
substantial profits under Transfer Price Agreements with the U.K.
and Australia as being indemnification for non-infringing legal
services and risk. This was dismissed by the trial judge. Apotex
and Pharmachem also argued for the reduction of their profits
payable because of the alleged availability of non-infringing
alternatives. Trial Judge Gagné dismissed the application of
this defence on the law and, alternatively, based on her
appreciation of the evidence.
Defendants' motion for stay of execution was denied. The
Court also refused to accept many of the redactions that had been
requested by Apotex and Pharmachem of information on financial
matters and the intercompany relationships contained in the
Apotex and Pharmachem have filed a Notice of Appeal
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