Merck & Co. Inc. v. Apotex Inc.

Merck & Co. Inc. v. Apotex Inc.

The prothonotary applied the correct legal principles (Canderel/Visx) and, on the record of documentary production and discoveries, the permitted amendments raised arguable triable issues and were not clearly beyond doubt or futile; the prothonotary was not shown to have based his discretion on a wrong principle or misapprehension of fact, therefore the motion to set aside the prothonotary's order is dismissed.

Citation
2003 FCT 159
Parties
Plaintiff (cross Defendant): MERCK & CO., INC.; Plaintiff (cross Defendant): MERCK FROSST CANADA & CO.; Plaintiff (cross Defendant): ZENECA LIMITED; Plaintiff (cross Defendant): ASTRAZENECA UK LIMITED; Plaintiff (cross Defendant): ASTRAZENECA CANADA INC.; Defendant (cross Plaintiff): APOTEX INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
13 February 2003
Procedural Posture
Patent Infringement / Validity / Motion to Set Aside Prothonotary Order (rule 51 Appeal)
Outcome
motion dismissed
Legal Topics
Amendment of Pleadings, Standard of Review on Interlocutory Motions, Sufficiency of Disclosure (s.34 Patent Act), Divisional Application Validity, Infringement (chemical Equivalents)
Source Language
English
Patent Law Civil Procedure Amendment of Pleadings Standard of Review on Interlocutory Motions Sufficiency of Disclosure (s.34 Patent Act) Divisional Application Validity Infringement (chemical Equivalents)

Case Brief

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Parties

MERCK & CO., INC.

Plaintiff (cross Defendant)

MERCK FROSST CANADA & CO.

Plaintiff (cross Defendant)

ZENECA LIMITED

Plaintiff (cross Defendant)

ASTRAZENECA UK LIMITED

Plaintiff (cross Defendant)

ASTRAZENECA CANADA INC.

Plaintiff (cross Defendant)

APOTEX INC.

Defendant (cross Plaintiff)

Procedural Posture

Patent Infringement / Validity / Motion to Set Aside Prothonotary Order (rule 51 Appeal)

Legal Issues

  1. 1 What is the applicable standard of review for an appeal of a prothonotary's discretionary order?
  2. 2 Whether the prothonotary exercised discretion based on a wrong principle or misapprehension of facts.
  3. 3 Whether the amendments regarding lisinopril dihydrate withdraw prior admissions and/or disclose a reasonable defence to infringement.

Ratio Decidendi

The prothonotary applied the correct legal principles (Canderel/Visx) and, on the record of documentary production and discoveries, the permitted amendments raised arguable triable issues and were not clearly beyond doubt or futile; the prothonotary was not shown to have based his discretion on a wrong principle or misapprehension of fact, therefore the motion to set aside the prothonotary's order is dismissed.

Court Disposition

motion dismissed

Orders

  • This motion should be dismissed.
  • Costs to follow the cause.