Federal Court rejects NIA defence and awards compound interest on patent damages

January 28, 2015

On Jan. 23, 2015, the Federal Court released its decision regarding the quantum of damages recoverable by Eli Lilly (“Lilly”) in an action relating to Apotex’s infringement of patents related to the manufacture of the antibiotic cefaclor. Lilly was awarded damages, including those related to lost profits on lost sales and prejudgment interest at the average rate of Lilly’s overall profit rate compounded annually, for the 17 years between the commencement of the proceeding and the final disposition on the quantum of damages.

The quantum of the final award including prejudgment interest totaled to $106,274,649.00.

The Court fully rejected Apotex’s argument that damages should be reduced because Apotex could have hypothetically avoided infringement if it had known it was going to lose the liability case (the “non infringing alternative” or NIA defence).

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