In AstraZeneca Canada Inc v Apotex Inc, 2015 FC 671, Justice Barnes of the Federal Court amended his previously issued Judgement in an action regarding omeprazole and Canadian Patent No. 1,292,693.
The proceeding was bifurcated, and Justice Barnes issued a Judgement and Reasons regarding the liability issues in March of this year. That decision is now under appeal. In the Reasons, Justice Barnes found that the patent was valid and infringed, that AstraZeneca was permitted to elect an accounting of profits, and that the evidence did not support a finding of punitive damages. However, the Judgement itself stated only as follows:
 It is declared that Claims 1, 5, 6, 13 and 19 of Canadian Letters Patent 1,292,693 are valid and have been infringed by Apotex Inc. by its manufacture, promotion and sale in Canada and elsewhere of Apo-Omeprazole; and
 The issue of costs is reserved pending a further hearing to be arranged.
The parties brought a Rule 397 motion to modify the terms of this Judgement. Justice Barnes held that he could “only make corrections where the language of the Order fails to conform with the reasons given or to deal with issues that were overlooked or accidentally omitted.”
Justice Barnes ordered that the Judgement be amended to address several issues decided in the Reasons. Most notably, the Judgement was amended to:
- refer to Apotex’s infringing composition as Apotex’s “Omeprazole capsule products, including its coated Omeprazole pellets” because the reference to the trade name “Apo-Omeprazole” in the Judgement was narrower than the Court intended;
- provide that the Plaintiffs are entitled to elect either an accounting of profits or damages; and
- dismiss the Plaintiff’s claim for punitive damages
Justice Barnes determined that springboard profits or damages are no different than any other claim to damages and concluded that the Judgement did not need to be amended to specifically refer to them. The remedies for infringement remain to be determined in a subsequent hearing.
A copy of the decision can be found here.