Apotex Inc. v. Eli Lilly and Co.
A-382-96
Décary J.A.
25/9/96
6 pp.
Appeal of interlocutory injunction granted by Motions Judge-Respondents Eli Lilly Canada (Inc.) licensee under patent owned by respondent Eli Lilly and Co. for fluoexetine hydrochloride (Prozac)-Appellants generic drug companies intend to manufacture and distribute drug after expiry of patent, using similar shape, size and colour as used by respondents-November 15, 1995, Lilly Canada granted sub-licence to Pharmascience Inc. to market Prozac on generic basis-Product identical in substance and almost identical in appearance-November 17, respondents filed statement of claim seeking interlocutory and permanent injunction-Interim injunction issued April 26, 1996 restraining appellants from passing off capsules as originating from respondents-Respondents gave Pharmascience exceptional opportunity to penetrate generic market free from competition from appellants for duration of injunction-Plaintiff seeking interlocutory injunction must establish it will suffer irreparable harm-Motions Judge essentially finding Pharmascience would suffer irreparable loss and would be transmitted to respondents-Pharmascience not party to proceedings-Finding loss would be transmitted to respondents not supported by sufficient evidence-Appeals allowed.