Ontario Court Refuses to Strike Out Apotex’s Damages Claim Based On Monopolies Acts

On August 27 2015, the Ontario Superior Court of Justice released the decision of Dunphy J in Apotex Inc v Eli Lilly and Co, 2015 ONSC 5396, which refused to strike a claim by Apotex Inc (Apotex) for damages founded on Ontario’s Statute of Monopolies, an 1897 re-enactment of the English Statute of Monopolies enacted in 1624 by King James I (collectively, the Monopolies Acts).  Apotex is claiming treble damages and double costs alleging that the improper procurement of a patent covering the use of drug atomoxetine by Eli Lilly and Company (Lilly) hindered the market entry of Apotex’s generic product in contravention of the Monopolies Acts.  Apotex’s claim under the Monopolies Acts is in addition to its claim under Section 8 of the Patented Medicines (Notice of Compliance) Regulations (the Regulations) relating to a prohibition proceeding unsuccessfully brought by Lilly against Apotex after Lilly’s atomoxetine patent was declared invalid in separate litigation under the Patent Act. 

Dunphy J did not find that it was plain and obvious that Apotex could not succeed on its Monopolies Acts claim.  Dunphy J noted that the trigger for Apotex’s Section 8 claim was the dismissal of Lilly’s prohibition application against Apotex under the Regulations, whereas the trigger for Apotex’s Monopolies Acts claim was Lilly’s voluntary decision to seek an invalid patent and to place its invalid patent on the Patent Register, which delayed Apotex’s market entry by engaging the Regulations. 

Having concluded that it would be premature to strike Apotex’s claim before Parliament or a court have had an opportunity to consider the claim, Dunphy J refused to strike Apotex’s claim under the Monopolies Acts.

This ruling is the latest development in an ongoing lawsuit between Apotex and Lilly and Eli Lilly Canada Inc wherein Apotex is claiming damages arising from a delay in the market entry of its generic version of atomoxetine (Lilly’s STRATTERA®).