(continued from page 27) in a later action, any section 8 liability should, logically, be washed away on the basis that the generic could not have lawfully sold its product without infringing the patent (as determined by the action). Section 8 provides that if an application [to prohibit the generic’s NOC] … is dismissed by the court … the fi rst person [the innovator with the NOC] is liable to the second person [the generic] for any loss suff ered during the period: • Beginning on the date, as certifi ed by the minister, on which a notice of compliance would have been issued in the absence of these regulations, unless the court concludes that … [another] date is more appropriate; and
• Ending on the date of the … dismissal … [the section 8 damages period]. T e jurisprudence has interpreted this provision as compensatory and limiting the generic to its damages actually incurred during the section 8 damages period. T e generic cannot recover the innovator’s profi ts, nor is it entitled to future losses (eg, long-term loss of market share due to delayed entry/loss of fi rst mover advantage).
Gunars Gaikis is a partner at Smart & Biggar/ Fetherstonhaugh in Canada. He can be contacted at:
ggaikis@smart-biggar.ca
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