Apotex Inc v AstraZeneca Canada Inc 2012 FCA 68 Stratas JA: Dawson, Trudel JJA aff’g 2011 FC 598 Mosley J, aff’g 95 CPR(4th) 414 Lafrenière
Pr.
Can issue estoppel in Canadian patent litigation be based on foreign findings of fact? While we
do not yet have a definitive answer to this question, the FCA has once again held that such a
pleading will survive a motion to strike.
In early skirmishing in the omeprazole infringement action, AstraZeneca sought to allege that
Apotex is estopped from litigating certain findings of fact made in US litigation respecting the
equivalent US patent. AstraZeneca was careful in its pleading to exclude “matters regarding claim construction.” Despite opposition from Apotex, Prothonotary Lafrenière
permitted these allegations to stand, and that decision was affirmed by Mosley J. The FCA has
now affirmed, saying “it is not plain and obvious at this time that the facts alleged are
inextricably bound or related to the foreign court’s construction of the claims and that these
paragraphs cannot succeed in law” [9].
See here for a related discussion, including citations to earlier decision of the FC and FCA on
point.
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