Sanofi-Aventis et al. v. Apotex Inc. et al. : The one hundred eight million dollar question

Abstract

In Sanofi-Aventis et al. v. Apotex, Inc. et al., 659 F.3d 1171 (Fed. Cir. 2011), the Federal Circuit reversed a lower court's grant of prejudgment interest to Sanofi in view of a settlement agreement between the parties, affirmed the lower court's determination that Canadian-based Apotex Inc. was jointly and severally liable with American-based Apotex Corp. for all damages and denied a motion of Apotex Inc. and Apotex Corp. for leave to amend to add an affirmative defense of patent misuse and a counterclaim for breach of contract. Regarding the denial of prejudgment interest in the amount of $107,930,857, the Federal Circuit found that the term “actual damages” in the settlement agreement included all the damages to which Sanofi was entitled. This decision, accordingly, highlights the importance of drafting carefully crafted settlement agreements.