After the Supreme Court of Canada (SCC) held that AstraZeneca’s patent relating to esomeprazole (NEXIUM) was not invalid for inutility and the SCC’s dismissal of Apotex’s post-judgment motion for reconsideration and rehearing, Apotex sought to raise new grounds of patent invalidity in the Federal Court, premised on “overpromising” under insufficiency, wilful misleading and overbreadth. Justice Locke dismissed Apotex’s motion (AstraZeneca v Apotex, 2018 FC 185): the validity of the patent was finally decided by the SCC; any doubt that might have remained about the SCC’s intent was resolved by the SCC’s dismissal of Apotex’s motion. Justice Locke also held that AstraZeneca was entitled to a declaration of infringement and ordered the quantification of AstraZeneca’s damages or Apotex’s profits. Apotex has appealed.
