Merck & Co. Inc. v. Apotex Inc.
T-2408-91
MacKay J.
5/12/95
16 pp.
Application for order confirming order requiring Apotex to maintain accounts of sales, shipments of apo-enalapril and to provide certain information to Merck on ongoing basis in effect, and continuing in effect until final disposition of all appeals, leaves to appeal and reference for damages-Also seeking order requiring defendant to maintain records, and to deliver to plaintiffs detailed records regarding supply, distribution-Directions for delivery more detailed, frequent than under previous order-Trial judgment finding Apotex infringing Merck patent-Appeal allowed in substantial part-Limiting liability for infringement to use, manufacture or sale of enalapril maleate from designated lots not in existence or acquired before patent granted-By Court of Appeal judgment Apotex required to deliver up or destroy all bulk or products from designated lots-Applications for leave to appeal to S.C.C. not yet determined-Continuing effect of order depending on terms, purposes, determinations at different stages by Trial Division and by Court of Appeal of Apotex' liability for patent infringement-Prior to trial, order issued to ensure records available for purposes of action, particularly for determination of damages or calculation of profits arising from infringement-Latter purpose not yet fulfilled-Order continuing in effect-Scope of application must reflect in turn and in time determinations at trial, and following appeal, of infringement-Order directing maintenance of records by Apotex and provision of information in relation to those records continuing in effect with regard to product in possession or control of Apotex from date of order issued until judgment of Court of Appeal and with regard to enalapril maleate in possession of Apotex derived from designated lots-Plaintiff may retain all information provided by Apotex and entitled to provision of any information not yet provided in full compliance with terms of order as applies to records in relation to identified quantities of enalapril maleate subject to confidentiality order, including reference for assessment of damages or profits.