Les Laboratoires Servier and Another v Apotex Inc. and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Sullivan LJ,Sir David Keene |
| Judgment Date | 12 February 2010 |
| Neutral Citation | [2010] EWCA Civ 279 |
| Docket Number | Case No: A3/2008/2867 & 2867(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2010 |
[2010] EWCA Civ 279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION, PATENT COURT
MR JUSTICE NORRIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jacob
Lord Justice Sullivan
and
Sir David Keene
Case No: A3/2008/2867 & 2867(B)
Mr Iain Purvis QC and Mr Andrew Lykiardopoulos (instructed by Bristows) appeared on behalf of the Appellant.
Mr Anthony Watson QC and Mr Colin Birss QC (instructed by Messrs Taylor Wessing) appeared on behalf of the Respondent.
(As Approved)
This is an appeal from a decision of Norris J given on 9 October 2008. In June 2008 over a period of five days he heard an inquiry as to what damages if any should be paid to the parties (whom I will call "Apotex") who had been the subject of an interlocutory injunction for a period of 11 months before the patent was held to be invalid by Pumfrey J, a decision confirmed with considerable emphasis by a decision of this court. The patent was one that should never have been granted, not through the fault of the Patent Office, but because the patentees must have known that it was invalid.
Norris J had to wade through masses of accountancy and other evidence and had come to the conclusion that the appropriate sum payable was £17.5 million. No-one suggests that he got his calculations wrong. But shortly before he gave his judgment and after all the evidence and argument had taken place, Servier made an application to amend its pleadings. It came about in this way. The Apotex product was made in Canada, or would have been made in Canada, where Apotex's headquarters are. A cross-undertaking had been given at the interlocutory stage not only to the United Kingdom Apotex company but also to a number of other Apotex companies including the Canadian company. Apotex had learnt from past experience that you need such a cross-undertaking if you are to be able to claim any damages if it turns out the injunction is wrongly granted.
As I say, Servier made an application. The basis of the application was that the Federal Court in Canada had held that the manufacture in Canada of the material, perindopril, was an infringement of the Canadian patent. It was not the same patent or corresponding patent to that which had been the subject of the English proceedings. It was the basic patent for perindopril, not merely a crystalline form of it. We were told that under some quirk of Canadian law the basic patent can last a very long time indeed, and on 2 July the Federal Court held the patent valid and infringed in Canada. It followed that the perindopril which would have been supplied to the United Kingdom would have been made in infringement of the Canadian patent.
Servier asked the judge for leave to amend its pleadings to put forward two distinct defences: firstly, one essentially of law, that Apotex could not claim damages for being prevented to sell a material whose manufacture would have been unlawful; secondly, more as an accounting matter, Apotex Canada could not claim that it would have...
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