PRACTICE |
Pleadings |
Amendments |
Bristol-Myers Squibb Co. v. Apotex Inc.
T-2078-00
2002 FCT 161, Blanchard J.
13/2/02
6 pp.
Motion to set aside Prothonotary's orders granting leave to further amend statement of defence and counterclaim, and requiring plaintiffs to serve further affidavit of documents--Plaintiffs asserting Prothonotary erred by: (1) allowing defendant to include defence of obviousness based on prior art; (2) ordering plaintiffs to produce all of their costing documents, on full accounting basis, not on accepted basis of differential cost accounting, thus delaying hearing and increasing costs of trial preparation--Motion dismissed--(1) Court will only deny amendments in plain, obvious cases where matter in dispute beyond doubt-- Plaintiff submitting prior art relied upon nefazodone base i.e. obvious conversion of nefazodone base to nefazodone salt obvious to one skilled in art--Defendant submitting prior art relied upon is common general knowledge in field --Consideration of such evidence, determination of such issues best left for hearing judge--(2) Case law not, as matter of law, imposing differential cost method as only approach Court may adopt in damages calculation--Each situation must be looked at in light of own particular facts, circumstances--Prothonotary not wrong in exercise of discretion--Federal Court Rules, 1998, SOR/98-106, r. 221.