PATENTS |
Practice |
Merck & Co., Inc. v. Apotex Inc.
A-346-98
Evans J.A.
28/6/00
4 pp.
Appeal from Motions Judge's order, in action for patent infringement, striking part of plaintiffs' pleadings and requiring amendment to paragraph thereof on ground did not disclose or advance reasonable cause of action--Motions Judge struck one paragraph as worded ("Apotex will continue to offer for sale and sell Lisinopril and Apo-Lisinopril in Canada in response to demand for same") on ground it spoke to indefinite future instead of past and present infringement--Motions Judge also permitted amendment of paragraph to assert that defendant continues to offer for sale and sells medicine in question--Motions Judge struck another paragraph as found did not advance quia timet aspect of plaintiffs' action--Appeal dismissed--Motions Judge did not misunderstand either nature of pleadings, or relevant law--Assertions in those paragraphs do not disclose facts normally necessary to obtain quia timet injunction: high probability infringement will otherwise occur and infringement imminent--Future infringement cannot be inferred from fact Apotex did not have enough pre-patent inventory to supply demand until expiry of patent, nor from Apotex' refusal to respond to appellants' letter seeking undertaking it would give up its NOC when pre-patent inventory exhausted--In absence of other facts, neither facts asserted in those paragraphs, nor supporting particulars, allege infringement of patent sufficiently probable to justify grant of quia timet injunction.