Ontario Court of Appeal Affirms No Unjust Enrichment Claim Following PM(NOC) Litigation

On May 5, 2015, the Ontario Court of Appeal (OCA) upheld the Divisional Court’s decision striking Apotex’s unjust enrichment claim against Lilly following litigation under the Patented Medicines (Notice of Compliance) Regulations (the Regulations), Apotex Inc v Eli Lilly and Company, 2015 ONCA 305, aff’g 2013 ONSC 5937. Specifically, Apotex claimed for a disgorgement of the profits that Lilly made on sales of STRATERRA® (atomoxetine HCl) over and above Apotex’s damages claim under section 8 of the Regulations. Apotex would not have otherwise earned these profits from selling its generic product.

The OCA held that Apotex’s claim could not succeed because it could not establish the “corresponding deprivation” element of the unjust enrichment test. In particular, the OCA stated that “Apotex was never deprived of the portion of Lilly’s revenues represented by its monopolistic profits because Apotex would never have earned those profits.”

Previously, other courts have dismissed unjust enrichment claims on the basis that the Regulations constitute a complete code for section 8 claims or that the Regulations provide a juristic reason for a patentee to retain its profits in excess of the amount of the loss that the generic suffered during the section 8 liability period. The OCA did not consider these two bases when dismissing Apotex’s appeal in the present case. Previous coverage of similar unjust enrichment claims in E-TIPS® newsletter can be found here and here.