Patent Infringement: Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!

Welcome to Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! This week, lawyer Kyla Lee discusses patent infringement.

Acumen Law Corporation lawyer Kyla Lee gives her take on a made-in-Canada court case each week and discusses why these cases should have been heard by Canada’s highest court: the Supreme Court of Canada.


Apotex Canada was sued by Lilly Canada, two pharmaceutical companies manufacturing companies. The reason for the lawsuit was that Apotex obtained some of a Lupin 2 Cefaclor that was owned by Lilly Canada. They used it to make a competing drug and ultimately sold it on the marketplace.

Lilly sued Apotex claiming that they had a patent for the cefaclor and that Apotex was not supposed to be using it.

Ultimately the court agreed with Lilly and awarded them $31 million in damages. However, they found that of the two patent infringements that were being alleged, only one was proven. The other patent infringement was not proven and Apotex was permitted to continue manufacturing one of the drugs.

The Supreme Court of Canada missed the opportunity here to clarify how patent law damages are to be awarded in circumstances like this so that companies whose patents are infringed are not unjustly enriched by being given more money than they would otherwise be entitled to or more than the value of their losses overall.

Watch the video for more.

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