Last month I checked in on a discovery dispute regarding the timeliness of disclosing noninfringing alternatives (NIAs) in a case with only two rounds of expert reports. I noted that the problem (defendant waiting until the...more
Much like secondary considerations, non-infringing alternatives fit imperfectly within many scheduling orders. The patentee has the burden of proof on damages, but it is the accused infringer who must prove that any...more
In a Hatch-Waxman case, the District Court for the District of New Jersey recently found that a generic label that included an allegedly infringing permissive use did not induce infringement where the label cautioned against...more
The District of Delaware recently held that evidence addressing a lack of non-infringing alternatives from the perspective of the market as a whole, as opposed to customer-by-customer, may suffice when the market includes...more
The Supreme Court of Canada recently clarified the role of non-infringing options as well as springboard profits when calculating profits in patent infringement cases....more
Patent owners can recover lost profits when (1) there is a demand for a patented product, (2) an absence of acceptable non-infringing alternatives, (3) the patentee had the manufacturing and marketing capacity to exploit...more
As discussed in Part I, a company’s technology must have strong intellectual property to establish a significant technology transfer program or prepare for an eventual acquisition. Establishing an intelligent IP strategy can...more
In Sound View Innovations, LLC v. Hulu, LLC, a district court denied Hulu’s motion to quash a subpoena directed to its trial-supervising in-house attorney. The court agreed that Sound View may question Hulu’s attorney live,...more
IN THIS ISSUE: -Abbott/Takeda permitted to plead that a third party’s patent would be infringed by alleged non-infringing alternative - PMPRB News: **PMPRB issues a Notice of Hearing for allegations of excessive...more
On the eve of a section 8 trial, the Ontario Superior Court granted Abbott and Takeda leave to amend their pleadings to assert that Apotex’s purported non-infringing alternative (NIA) was unlawful as it would have infringed a...more
FCA overturns cefaclor damages decision on prejudgment interest issue, provides guidance on NIA defence - On November 23, 2018, the Federal Court of Appeal (FCA) allowed in part Apotex’s appeal of a decision awarding Eli...more
On November 23, 2018, the Federal Court of Appeal (FCA) allowed in part Apotex’s appeal of a decision awarding Eli Lilly over $100 million for Apotex’s infringement of eight process patents related to the antibiotic cefaclor:...more
Assessing Damages in Patent Litigation - Patent Damages - • Damages for infringement shall be “adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the...more
Servier and its related company ADIR were successful in another chapter of patent litigation relating to perindopril (Servier’s COVERSYL): the Federal Court again dismissed Apotex’s non-infringing alternative defence, finding...more
The Canadian “accounting of profits” remedy for patent infringement, which is not available in the U.S., provides a potentially significant opportunity for companies with Canadian IP rights. Recent court decisions have...more
The Federal Court has issued its Public Judgment and Reasons concerning the financial compensation to be paid to AstraZeneca as a result of Apotex’s infringement of the omeprazole formulation patent (AstraZeneca’s LOSEC) in...more