UK – Les Laboratoires Servier v. Apotex / damages

Posted: March 29th, 2011

Les Laboratoires Servier, Servier Laboratories Limited v. Apotex Inc, Apotex Pharmachem Inc, Apotex Europe Limited and Apotex UK Limited, High Court of Justice, Chancery Division, Patents Court, London, UK, 29 March 2011, Case No. [2011] EWHC 730 (Pat)

The issue decided in this case is whether a patentee who has obtained an interim injunction from a court to restrain infringement of a European patent (UK) which is subsequently held invalid should compensate the defendant for losses sustained as a result of being prevented by the injunction from selling goods manufactured by the defendant in infringement of a valid foreign patent owned by the same group of companies.

Servier contends that, as a matter of public policy, Apotex cannot recover damages for being prevented from selling a material whose manufacture would have been unlawful because it infringed a valid foreign patent. This is an application of the rule of law identified by the Latin maxim ex turpi causa non oritur actio (no action can arise from an illegal or immoral act), also known as the illegality defence.

Justice Arnold concludes that Apotex’s claim is barred by the ex turpi causa rule. It follows that Apotex must repay Servier the money which Norris J ordered Servier to pay Apotex.

Read the earlier post here.

Read the judgment (in English) here.

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