| Citation: |
ApoteX Inc. v. Sanofi-Aventis, 2010 FC 182, [2010] 3 F.C.R. D-19 |
T-644-09 T-933-09 |
Patents
Practice
Motion by Apotex seeking consolidation of statement of claim, defence, into single defence, counterclaim—Also seeking to make certain amendments to pleadings—Apotex initiating action for declaration that product not infringing Sanofi’s patent, seeking declaration that patent invalid—Sanofi subsequently suing Apotex for patent infringement—Whether amendments appropriate—Amendments seeking introduction of new defences of set-off based on: alleged debt for “break fee” arising out of 2006 settlement agreement, tort of deceit, tort of abuse of process—Equitable set-off criteria: (1) party relying on set-off must show equitable ground, (2) equitable ground must go to root of plaintiff’s claim, (3) cross-claim connected to plaintiff’s demand—“Break fee” not related to alleged, actual infringement—Therefore, proposed amendment to include “break fee” claim abusive, vexatious—Alleged tort of deceit not impeaching patent infringement claim nor denying infringement took place—Tort of deceit distinct from tort of negligent misrepresentation, involving statement of fact, not opinion, estimates, advice, promise—Apotex not pleading essential component of tort of deceit—Apotex’ set-off claims based on tort of deceit frivolous, vexatious—Finally, abuse of process requiring litigation to be pursued for ulterior, collateral purpose—Proposed pleadings herein lacking required element of unlawful, improper purpose—Motion granted in part.
Apotex Inc. v. Sanofi-Aventis (T-644-09, T-933-09, 2010 FC 182, Tabib P., order dated February 18, 2010, 50 pp.)