An application for leave to appeal the decision in Apotex Inc. v. Janssen Inc., 2024 FCA 9 has been filed by Apotex in the Supreme Court of Canada (SCC).

In the Federal Court of Appeal (FCA) decision, the FCA upheld the Federal Court’s finding that Apotex would induce infringement of Janssen’s patented medicine, INVEGA SUSTENNA, by marketing its generic version. For a finding of inducement, the test generally requires: (1) direct infringement by a third party; (2) that the inducer influenced the third party to the point that the infringing act would not have occurred without the influence; and (3) that the inducer knew that its influence would bring about the infringing act. Apotex appealed to the FCA on the basis that the Federal Court erred in applying the second prong of the test. However, the FCA found that all three prongs of the test for inducement were satisfied.

Notably, in 2023, the FCA considered the test for inducement, and particularly the second prong of the test, in other two decisions: Teva Canada Limited v Janssen Inc, 2023 FCA 68 and Apotex Inc v Janssen Inc, 2023 FCA 220.  This suggests that the Corlac test, and particularly the second prong, may be an area of increasing judicial scrutiny and/or interest.  Accordingly, if leave to appeal is granted by the SCC, this would give the SCC an opportunity to consider and potentially clarify and/or develop the test for inducement.

Read the FCA’s decision here. View the Supreme Court of Canada case information for this leave to appeal here.