On appeal, Apotex successfully claimed some damages from Merck's proceedings under the PM( NOC ) Regulations. However, Merck was successful in denying a large portion of damages. Apotex was successful in claiming damages for losing market share due to the fact that other generic drug manufacturers entered the market at the same time as Apotex. However, while the trial court included future lost profits in the damages award, the Court of Appeal decreased the damages award to only include profits lost during the time period that Apotex was unable to obtain a NOC. The Court referenced an analysis done by the Governor-in-Council in 1998 which stated that lost profits and compensation should not include future losses. The Court of Appeal also rejected Apotex's assertion that disgorging Merck's profits was necessary to uphold the purpose of section 55.2 of the Patent Act. Section 55.2 states that it is not patent infringement to produce patented products for certain purposes prior to the expiration of a patent.