Les Laboratoires Servier v Apotex Inc [2012]
EWCA Civ 593 rev'g [2011] EWHC 730 (Pat)
In earlier installments of the log-running perindopril saga, Servier obtained an interlocutory injunction preventing Apotex from marketing perindopril in the UK, on the basis of a European patent which was ultimately held to be invalid. Apotex sought damages on the undertaking, but Servier pointed out that the perindopril which would have been sold in the UK, but for the interlocutory injunction, would have been manufactured in Canada and would have infringed a valid Canadian patent. Arnold J, in a decision blogged here, held that ex turpi causa prevented Apotex from recovering damages on the undertaking The EWCA has now reversed; but while Apotex will be able to claim on the undertaking, its damages will be reduced by the amount which Servier could recover under Canadian law for the infringing manufacture. My post on IPKat discusses the EWCA decision in more detail.
The EWCA decision has now been affirmed by the Supreme Court in the UK. See: http://ipkitten.blogspot.de/2014/10/how-illegal-is-illegality-supreme-court.html.
ReplyDeleteNow it's back to the Canadian court to see what they have to say about the cost of manufacture in Canada - i.e. the notional cost of manufacture of a product which was never made, but if it had been made would have infringed a Canadian patent.
What say you, Norman?