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Appeal from Prothonotary’s decision striking defendant’s counterclaim to patent infringement action, ruling defendant no longer “an interested person”—Plaintiff filing discontinuance, followed by discontinuance with prejudice—Patent Act, R.S.C., 1985, c. P-4, s. 60(1) permitting “any interested person” to apply for declaration of invalidity of patent—Given broad meaning of words “interested person”, defendant involved in similar business, impacted by patent held by plaintiff, defendant interested person for purposes of s. 60(1)—Discontinuance terminating plaintiff’s action—Counterclaim can proceed notwithstanding discontinuance: Federal Courts Rules, SOR/98-106 (as am. by SOR/2004-283, s. 2), r. 190—Party not entitled to take further steps in action it has discontinued except with leave of Court or in response to issues lawfully raised by other party in action—Plaintiff’s filing of second discontinuance with prejudice having no legal effect as lawsuit ended with filing of first discontinuance—As made on wrong principle with respect to effect of discontinuance with prejudice, Prothonotary’s order set aside—Appeal allowed.
Purcell Systems Inc. v. Argus Technologies Ltd. (T-1531-05, 2008 FC 1210, Mandamin J., order dated October 28, 2008, 13 pp.)