Date: 19980910
Docket: T-1170-98
BETWEEN:
ABBOTT LABORATORIES, LIMITED
and ABBOTT LABORATORIES
Plaintiffs
- and -
NOVOPHARM LIMITED
Defendant
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Monday, August 31, 1998 as edited)
GILES, A.S.P.
[1] On the day following my order of 31 August, 1998 in this matter, I was asked to prepare written reasons. The motion before me had sought to strike paragraphs 10, 11, and 12 as disclosing no reasonable cause of action and being scandalous, frivolous, and vexatious and constituting an abuse of process of the Court. The paragraphs in question describe the alleged infringing substance by describing the limits within which it falls. The paragraphs also list a number of alternatives as to how and by whom infringement might have taken place. The allegedly infringing chemical is described in the pleading by stating where peaks may be found in a powder x-ray diffraction pattern. The location of each of such peaks is shown by a number of degrees followed by plus or minus two-tenths (2/10) of a degree. For instance, 7.15 degrees +/- 0.2 degrees.
[2] The defendant is of the view that the description includes numerous different precise alternatives within the four-tenths (4/10) of a degree variation, and as there are nine peaks so-described there are an extremely large number of alternative precise descriptions.
[3] To me, including the plus or minus 0.2 degrees is a way of being somewhat more specific than a phrase such as 7.15 degree more or less. In any event, the patent has been granted for a substance with peaks within the 0.4 variation and it is sufficient for infringement that a substance tests to show peaks within those variations. It is not necessary to show a more precise location of the peaks in the allegedly infringing substance to show that a substance infringes.
[4] In addition, there was no evidence before me either that a more precise measurement was possible, or that any particular measurement within the variations could show a non-infringing substance. It was therefore my view that the allegedly infringing character of the defendant's substance had been adequately described. There is therefore an indication of the existence of a cause of action, so those paragraphs will not be struck.
[5] With regard to the allegation of importing the chemical, in my view there is sufficient particularity in that one company from whom it has been imported has been mentioned. The non-specific inclusion of others does not detract. Paragraph 10 is therefore adequately particularised.
[6] The allegation in paragraph 11 as to the making of products with the chemical were in my view ambiguous, there being no allegation as to who precisely made the chemical alleged to infringe. I therefore ordered particulars of who made the products.
[7] The allegation in paragraph 12 as to what had been done by way of infringement were imprecise. I therefore ordered particulars be provided of what precisely had been done.
[8] The foregoing is an approximation of my reasons given orally from the Bench.
A.S.P.
Toronto, Ontario
September 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1170-98
| STYLE OF CAUSE: ABBOTT LABORATORIES, LIMITED |
and ABBOTT LABORATORIES
- and -
| NOVOPHARM LIMITED |
DATE OF HEARING: MONDAY, AUGUST 31, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GILES, A.S.P.
DATED: THURSDAY, SEPTEMBER 10, 1998
APPEARANCES:
For the Plaintiffs
For the Defendant
SOLICITORS OF RECORD:
For the Applicant
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980910
Docket: T-1170-98
Between:
ABBOTT LABORATORIES, LIMITED
and ABBOTT LABORATORIES
Plaintiffs
- and -
| NOVOPHARM LIMITED |
Defendant
REASONS FOR ORDER