| CITATION: |
prenbec equipment inc. v. timberblade inc., 2010 FC 23, [2010] 2 F.C.R. D-3 |
T-1554-08 |
Patents
Practice
Motion by plaintiffs seeking stay of re-examination process before patent re-examination board—Board appointed by Commissioner of Patents to review patent owned by plaintiffs—Whether Court having jurisdiction to order stay of re-examination board’s ongoing proceeding conducted pursuant to Patent Act, R.S.C. 1985, c. P-4, ss. 48.1 et seq.—Federal Courts Act, R.S.C., 1985, c. F-7, s. 50(1)(b) providing that Federal Courts can, in their discretion, stay proceedings in any cause or matter where in interest of justice—This provision not limited to proceedings before this Court, but encompassing other proceedings in addition to those pending—Nothing in French, English versions of s. 50 indicating intention to restrict Court’s power to stay proceedings to only those before it—Power to stay proceedings used sparingly, in interest of justice—Counsel for third parties arguing, in case at bar, that to stay re-examination process would be inconsistent with mandatory limitation period prescribed by Patent Act, s. 48.3(3)—This argument not persuasive—In any event, it would take more than time limitation within which tribunal must rule on administrative proceeding to oust very explicit jurisdiction conferred on Federal Courts by Parliament—Therefore, Federal Courts Act, s. 50(1) conferring power on this Court to issue stay of re-examination proceedings before re-examination board—Plaintiffs will suffer irreparable harm by continuation of re-examination proceedings since Board will most likely ultimately invalidate their patent—By filing re-examination request after commencement of present infringement action, defendant merely attempting to avoid dealing with issue of credibility surrounding alleged prior art—When determining whether to grant stay, preference should be given to most comprehensive proceedings (i.e. Federal Court herein)—In interest of justice that stay of re-examination proceedings be granted pending outcome of present action—Motion granted.
Prenbec Equipment Inc. v. Timberblade Inc. (T-1554-08, 2010 FC 23, de Montigny J., judgment dated January 8, 2010, 22 pp.)