Les Laboratoires Servier v Apotex [2008] EWHC (Ch) 2347

Judgment on the damages enquiry in Les Laboratoires Servier -v- Apotex was handed down in the Patents Court of the High Court on 9 October 2008 by Mr Justice Norris. Apotex were awarded £17.5M.

It is the first time the court has adjudicated on the measure of damages due under the cross-undertaking given by a patentee in respect of an injunction, when the patent on which the injunction was based is subsequently found to have been invalid.

Apotex had been subject to an injunction for almost a year in respect of Servier's patent EP 1 296 947 for heart drug, perindopril, brand name Coversyl, which was subsequently found invalid by the High Court and Court of Appeal. Lord Justice Jacob of the Court of Appeal said:

"…It is the sort of patent which can give the patent system a bad name…the only solution to this type of undesirable patent is a rapid and efficient method for obtaining its revocation. Then it can be got rid of before it does too much harm to the public interest…It is the court's job to see that try ons such as the present patent get nowhere."

The judge took the view that Servier obtained the injunction on the basis that Servier believed its patent to be valid and infringed. The judge concluded that belief was consistent with maintaining a duopoly with Apotex to maximize Servier's profits both before trial with Apotex on the market, and after trial when their monopoly could be re-instated. The judge put the likelihood of a duopoly at 67%. Servier sought to argue that Apotex's profits would have been considerably lower as Servier said they would have authorised generics to compete with Apotex if Apotex had not been injuncted. The judge assessed the likelihood of this scenario at 33%.

The judge calculated the damages by adding 67% of Apotex's estimated loss in a duopoly scenario to 33% of Apotex's estimated loss in a market with competing authorised generics.

Taylor Wessing advised Apotex and the team was led by Simon Cohen, Kathleen Fox Murphy and Matthew Royle.

For the full text of the decision please click here