Sanofi-Aventis et al. v. Apotex, Inc. et al.


Docket No. 2011-1048

NEWMAN(d), SCHALL, MOORE
October 18, 2011

Subject matter: damages

Apotex appealed USDC SDNY award of prejudgment interest to SA and that Apotex Inc. and Apotex Corp. were jointly and severably liable for damages related to Plavix® (clopidogrel). This appeal arose after several litigations and protracted settlement negotiations. Apotex argued that the settlement agreement only referred to “actual damages” (“50% of Apotex’s net sales”) and did not include interest. Sanofi argued that the DC correctly included interest in the award even if the agreement was silent (Gen. Motors Corp., US 1983). Applying New York contract law to its analysis, the FC “conclude[d] that the parties intended that the phrase ‘actual damages’ [to] include all damages necessary to compensate Sanofi for Apotex’s infringement” and not to include prejudgment interest (“the parties manifested a clear intent to have the settlement agreement define the full scope of Sanofi’s potential recovery”). The FC also concluded, based on the contract and precedent, that Apotex Inc. was jointly and severally liable for all damages. Apotex had also argued that it should be allowed to argue that Sanofi’s patent was unenforceable for patent misuse because its manufacturing partner had not disclosed an oral agreement regarding authorized generics to the FTC. Judge Newman disagreed regarding prejudgment “interest to which the patentee is entitled by statute and precedent.”

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