[2016] 4 F.C.R. D-13
Patents
Infringement
Settlements — Appeal from Federal Court (F.C.) decision finding parties had settled patent infringement litigation — Respondents alleging appellants infringed Canadian Patent No. 1340316 — Settlement discussions taking place — Record containing letters, emails, draft minutes of settlement, reporting letters to F.C. — Respondents moving for order enforcing settlement agreement after negotiations falling apart — Respondents of view that although parties did not sign formal agreement, agreement reached on all essential terms — F.C. granting motion — Whether settlement agreement reached in common law jurisdiction — Settlement agreement reached when certain requirements satisfied — Court must find on evidence before it that, objectively viewed, parties had mutual intention to create legal relations — Settlement agreement must satisfy requirement that there be consideration flowing in return for promise — Court must also find, as objective matter, that terms of agreement sufficiently certain — Agreement arising when matching offer, acceptance on all terms essential to agreement — In assessing whether requirements met, Court must adopt objective standpoint — Evidence into actual state of mind or subjective intention of parties irrelevant — F.C. herein focussing on two sets of evidence, i.e. initial exchange of three letters, email; second exchange of emails — Asserting that all essential terms agreed to without considering law as to essentiality, how it applied herein — Erroneously applying subjective standard — Viewed objectively from standpoint of businessperson, content of three letters, email not constituting offer, acceptance — Not legally possible to find agreement in exchange of emails — No matching offer, acceptance on all essential terms in remaining communications between parties — Appeal allowed.
Apotex Inc. v. Allergan, Inc. (A-204-15, 2016 FCA 155, Stratas J.A., judgment dated May 18, 2016, 30 pp.)