For a non-infringing alternatives defence to be successful, each component of the test for the defence must be established.
In Apotex Inc. and Apotex Pharmachem Inc. v. ADIR and Servier Canada Inc. (F.C.) (Civil) (By Leave) the Supreme Court of Canada (“SCC”) dismissed an application for leave to appeal brought by Apotex Inc. and Apotex Pharmachem Inc. (collectively, “Apotex”).
At the trial level, Apotex had raised as a defence the availability of non-infringing perindopril from sources outside of Canada, but the Federal Court had determined that Apotex had failed to establish one component of the defence. As a result, Apotex was not eligible for a reduction in the amount of profits it was required to disgorge. This decision was upheld by the Federal Court of Appeal.
Following the same line of reasoning, the SCC dismissed the
application with costs.