Eli Lilly and Co. v. Interpharm Inc.
T-3108-91
Rouleau J.
20/4/93
14 pp.
Application to stay order granting leave to use in other proceedings name and location of manufacturer of Fluoxetine Hydrochloride identified in affidavit of Bernard Sherman pending disposition of appeal from that order -- Exhibits to affidavit sworn by B. C. Sherman subject of confidential and preservation order -- Further protective order issued on consent providing confidential information to be used only in connection with this action -- Order not applying to information becoming public knowledge -- Sherman affidavit, sealed and confidential, included name of defendants' supplier of Fluoxetine Hydrochloride and description of process -- During application for injunctive relief restraining defendants from alleged infringement, defendants filed "supplementary statement of fact and law" relating to infringement -- Name of foreign supplier revealed in brief as well as partial description of manufacturing process -- Supplementary statement of fact and law inadvertently filed in main Court file -- Plaintiffs applied for order under appeal one year later -- Submitted name and address of foreign supplier already made public in supplementary statement of fact and law and information now available for use by plaintiffs in other proceedings -- In addition to impugned order, supplementary statement of fact and law ordered sealed and kept confidential and removed from public court file, provided third party who obtained copy of documentation while on public record not in breach of court orders either in obtaining information or communicating it to others -- Defendants arguing if stay not granted, appeal rendered nugatory as plaintiffs, having knowledge of foreign suppliers' name and place of business, could have already commenced proceedings against supplier in another jurisdiction, and may be able to restrain it from providing material to Apotex -- Plaintiffs alleging limitation periods running and may lose ability to enforce patent rights in foreign jurisdiction -- Application allowed -- Information authorized for release and use sealed in January 1992 -- Public knowledge through inadvertence -- Plaintiffs aware from beginning information confidential[cad 211]No evidence action in foreign jurisdiction prescribed if proceedings not initiated immediately as prescription not applicable if continuing infringement -- If impugned order reversed on appeal, matter rendered nugatory since by time dealt with, actions will have been taken against foreign supplier -- Serious issue to be tried -- Only harm to plaintiffs delay in commencing proceedings in foreign jurisdiction -- Defendant could lose foreign source of supply, rendering entire proceedings in Canadian courts nugatory since alleged infringing material no longer available to defendants for sale -- Balance of convenience and irreparable harm favouring defendants.