1 Ex. C R. EXCHEQUER COURT OF CANADA [1965] 179 BETWEEN : 1964 r̀ HOFFMAN-LA ROCHE LTD. APPELLANT; Aug.11 AND BELL-CRAIG PHARMACEUTICALS RESPONDENT. DIVISION OF L. D. CRAIG LTD. Patents—Practice—Patent Act, R.S.C. 1962, c. 203, s. 41(3)—Compulsory licence—Appeal under s. 41(3) Application to suspend operation of licence pending appeal—Authority of Court to affect operation of Order of Commissioner of Patents pending appeal therefrom. This is an application by the appellant to stay proceedings in relation to the grant of a compulsory licence under s. 41(3) of the Patent Act by suspending the operation of the licence pending the disposition of an appeal to this Court from the decision of the Commissioner of Patents to grant the licence. Held: That it cannot be concluded that there is a probability that this Court will dispose of the appeal upon the ground that the Commissioner erred in not forming the opinion that the risk of danger to the public inherent in permitting the respondent to manufacture the 91537-3i
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180 1 R C. de l'É. COUR DE L'ÉCHIQUIER DU CANADA [1965] 1964 patented substance was good reason for refusing the licence, and this `~ HOFFMAN- is the only ground advanced by the appellant upon which the Court LA ROCHE would consider granting a stay, if it has authority to do so. LTD. 2. That it is not established that this Court, in an appeal under s. 41(3), v. BELL-CRAIG has any authority to affect the operation of the Commissioner's Order PHARMA- prior to disposition of the appeal. CEUTICALS 3. That the application is dismissed. D IVISION OF L. D. CRAIG APPLICATION for a stay of proceedings in relation to a TLD' decision by the Commissioner of Patents under subs. (3) of s. 41 of the Patent Act, an appeal having been taken from the decision to this Court. The application was heard on August 11, 1964 by the Honourable Mr. Justice Jackett, President of the Court, at Ottawa, and was dismissed. G. F. Henderson, Q.C. for appellant. I. Goldsmith for respondent. JACKET' P. now (August 14, 1964) delivered the following reasons for dismissing the application: This is an application to stay proceedings in relation to a decision by the Commissioner of Patents to grant a compulsory licence under ss. (3) of s. 41 of the Patent Act, an appeal having been taken from the decision to this Court. The purpose of the application, as I understand it, is to have an order of this Court issue postponing the effective date of the compulsory licence pending disposition of the appeal. The only ground, of those that have been urged upon me, upon which I would consider granting a stay, if I have authority to grant a stay, is that the Court might conclude, upon the disposition of the appeal, that the Commissioner of Patents erred in not forming the opinion that the risk of danger to the public inherent in permitting the respondent to manufacture the patented substance was good reason for refusing the licence. In that connection, I refer to a statement by Thurlow J. in Hoffman-La Roche Limited v. Delmar Chemicals Limited', concerning the duty of the Commissioner in dealing with an application under ss. (3) of s. 41, as follows : "But, as I read the section, neither the ability of the particular applicant to produce the food or medicine safely nor his ability to produce a safe food or medicine 127 Fox P.C. 178.
1 Ex. C.R. EXCHEQUER COURT OF CANADA is a matter which the Commissioner is concerned to 1964 ensure." Having regard to that statement, with which I agree, I can- Sian. not conclude that there is a probability that this Court will B.. dispose of this appeal upon the ground that the Commis- sioner erred in not forming the opinion that the risk of Divi$ ô pF danger to the public inherent in permitting the respondent to manufacture the patented substance was good reason for refusing the licence. Furthermore, I am not satisfied that this Court, in an appeal under ss. (3) of s. 41, has any authority to affect the operation of the Commissioner's order prior to disposition of the appeal. [1965] 181 HorrMAx- LA Roc= vdI G PHASMA-L. D. CRAM Lam' .Iackett P.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.