T-1258-97
Between:
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Applicants,
- and -
THE MINISTER OF HEALTH
and NU-PHARM INC.
Respondents.
REASONS FOR ORDER
Muldoon, J.
The respondent, Nu-Pharm Inc. (hereinafter sometimes, Nu-Pharm) applies for a usual, cumbersome and curially antipathetic "protective order" sometimes also called a "confidentiality order".
The counsel on both sides decided to ask not to attend on July 7, 1997, the date fixed for the hearing of this matter. That day this judge directed a question to Nu-Pharm for answer on oath. The affidavit could not yet be produced, but the answer has been conveyed informally.
The question posed is:
| Does Nu-Pharm not have a patent pending on its [allegedly] non-infringing process for producing lovastatin? |
The answer will, it is said, be "no, it does not."
If Nu-Pharm be so sure that its process for producing lovastatin will not infringe Merck's patent, why should Nu-Pharm not be obliged to apply for its own patent protection rather than importuning the Court for an unnatural confidentiality, or protective order. The Court should have the benefit of all parties' submissions on that score, as to why it should perversely keep secret documents, or not.
Nu-Pharm may file written submissions up to close of business in the registry on August 1, 1997. Merck may file written submissions, along with the Minister's separate submissions, if desired, until close of business on August 18, 1997, and Nu-Pharm may reply to any written submissions filed by the other two until August 26, 1997.
Courts in Canada are by nature, and constitutionally, open. One ought not to be able to induce this Court to do something so unnatural and perverse as to indulge in secret, non-public filings of documents, just for the asking. See Eli Lilly & Co. v. Novo Pharm Ltd. (1994) 82 F.T.R. 147.
In the meanwhile the Court will perversely permit filings of allegedly confidential documents in a parallel confidential file to be maintained in the registry on the same terms and conditions as are so stated in the draft order provided by Nu-Pharm with its motion. That parallel file shall bear the above noted Trial Division number: the documents as filed shall be accorded sequential document numbers just as if there were no parallel file; and the maintenance of that file may be determined by the judge who ultimately adjudicates Nu-Pharm's motion for a protective order.
F.C. Muldoon
Judge
Ottawa, Ontario
July 14, 1997
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1258-97
STYLE OF CAUSE: Merck & Co., Inc. et al.
v. The Minister of Health et al.
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON DATED: July 14, 1997
APPEARANCES:
C. Ross Carson FOR THE APPLICANTS
Mr. Harry B. Radomski FOR THE RESPONDENT; NU-PHARM INC.
SOLICITORS OF RECORD:
Ogilvy Renault FOR THE APPLICANTS Barristers and Solicitors
Montréal, Québec
Goodman, Phillips & Vineberg FOR THE RESPONDENT; NU-PHARM INC. Barristers and Solicitor
Toronto, Ontario
George Thomson FOR THE RESPONDENT:
Deputy Attorney General of Canada THE MINISTER OF NATIONAL HEALTH Ottawa, Ontario