“The court went through the history of the equitable [remedies] that are granted under the Patent Act and concluded that Apotex’s interpretation was wrong. And that the trial judge was correct in the outcome,” said Wilson.
“It’s a handy reference. I see this case being used in the future as the citation people use when they talk about equitable remedy,” she added.
“I think credit is due to their lawyers and Apotex for running this novel argument, but it’s not all that surprising that it failed,” said Michal Niemkiewicz, of anticIPate Law, adding that the Federal Court of Appeal did a good job of putting the phrasing of subsection 57 in historical context.
“This affirms the law as we all knew it. That a winning plaintiff in a patent action is entitled to damages as of right under the Patent Act. And if it so chooses may elect to ask for an accounting of profits. This is subject to the court’s discretion to refuse, but in practice it’s expected that generally speaking you either get damages or you can elect profits subject to the court’s discretion,” he explained.
Niemkiewicz said reading the court’s analysis was informative and the decision was very clear on why Apotex’s argument failed.
