Andrew Brodkin

The appellants, generic drug manufacturers, sought damages exceeding one billion dollars against the respondents, innovator drug companies, after the respondents' patent for the drug Olanzapine was declared invalid.

The appellants claimed damages under the Statute of Monopolies, the Trademarks Act, and the common law tort of civil conspiracy for the period they were kept out of the market.

The Court of Appeal upheld the motion judge's dismissal of the action, finding that the Patent Act and the PM(NOC) Regulations provided a complete code for remedies, and the respondents were not liable for damages caused by the lawful operation of the statutory regime.

The court also upheld the motion judge's $700,000 partial indemnity costs award against the appellants.

The respondents were successful in resisting appeals by the Varma/Madra Appellants and the Palihapitiya Appellants, and succeeded on their cross-appeal.

They sought costs on a substantial indemnity basis.

The Court of Appeal found no justification for a higher scale and awarded partial indemnity costs fixed at $300,000, payable equally by the two groups of appellants.