Date: 20051003
Docket: T-2078-00
Citation: 2005 FC 1348
Ottawa, Ontario, October 3rd, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
BRISTOL-MYERS SQUIBB COMPANY and
BRISTOL-MYERS SQUIBB CANADA INC.
Plaintiffs
and
APOTEX INC.
Defendant
REASONS FOR ORDER AND ORDER
[1] This is an appeal by Apotex Inc. from the Order of Prothonotary Aronovitch dated April 4, 2005 which allowed only in part Apotex's motion for an order requiring Bristol-Myers Squibb Company and Bristol-Myers Squibb Canada Inc. (collectively "BMS") to produce further and better Affidavits of Documents regarding a new ground of inutility raised by Apotex's Third Amended Statement of Defence and Counterclaim.
FACTS
[2] The underlying proceeding is an action by BMS against Apotex commenced in 2000 for the alleged infringement of Canadian Patent 1,198,436 (the '436 patent) with respect to a pharmaceutical product, the antidepressant drug called nefazodone.
[3] In 2003 BMS voluntarily withdrew its nefazodone product from the Canadian marketplace in connection with the following "Advisory" issued by Health Canada on November 10, 2003, which reads in part as follows:
Advisory
Health Canadais overseeing the market withdrawal of the antidepressant drug nefazodone
OTTAWA - Health Canada is overseeing the market withdrawal of the antidepressant drug called nefazodone. This action is in response to a Health Canada safety evaluation that found nefazodone poses a risk of causing serious liver-related adverse effects. [...]
[...]
Health Canada is aware of at least 38 reported cases in Canada of liver-related adverse effects, including one death, suspected to be associated with nefazodone products between 1994 and the end of last year. Earlier this year, Health Canada requested that manufacturers of nefazodone products submit the latest scientific information available to support the safety of the drug. Health Canada evaluated this data, along with the latest information from the scientific literature, and concluded that [...] the sale of nefazodone in Canada should be stopped.
[4] By Order dated July 28, 2004 the Court granted Apotex leave to amend its Statement of Defence and Counterclaim to plead the new ground of inutility based on BMS' market withdrawal of nefazodone in Canada. The order stated at page 2:
The amendments are based on recent actions of Bristol-Myers. Pursuant to the Rules Apotex and Bristol-Myers are to amend their affidavits of documents by reference to the factual allegations. There is no doubt that discoveries would thereafter properly ensue on the basis of the new production.
[5] Apotex amended by adding new paragraphs to its Statement of Defence and Counterclaim as follows:
20A. The '436 Patent asserts that the present invention relates to compounds, including nefazodone, and inter alia, their "therapeutic use in treating depression". The '436 Patent promises that the compounds of the invention, including nefazodone, are "improved antidepressants with minimal side effect potential". The '436 Patent also asserts that the invention provides a method for treating a mammal afflicted with depression and that, in accordance with good clinical practice, the invented compounds, including nefazodone, can be administered to produce effective antidepressant effects without causing any harmful or untoward side effects.
20B. Contrary to the assertions of the '436 Patent, as aforesaid, the compounds of the '436 Patent, including nefazodone, do not meet the promise of the '436 Patent in that the compounds, including nefazodone, are not "improved antidepressants with minimal side effect potential". Thus, the compounds of the '436 Patent do not have the utility promised in the '436 Patent.
[6] The order granting Apotex leave to amend its pleadings provided a right to documentary discovery in respect of the new allegation of inutility. Dissatisfied with BMS' subsequent documentary disclosure, Apotex brought a motion before the Prothonotary whose order of April 4, 2005 is the subject of this appeal.
[7] In the motion, Apotex sought to have the Prothonotary require BMS produce a further and better Affidavit of Documents which discloses:
(a) the Plaintiffs' internal memoranda, emails, or documentation of any kind, relating to the decision of the Plaintiffs to withdraw their product from the market;
(b) any memoranda, emails or other form of correspondence between BMS U.S. and BMS Canada relating to the decision to withdraw their nefazodone product from the market;
(c) clinical data, laboratory results, statistical data or any other documents prepared or used by the Plaintiffs relating to the side effects of nefazodone generally or to the specific effects of its nefazodone product on the liver;
(d) letters, emails or other forms of communication between the Plaintiffs and Health Canada or the Food and Drug Administration in the U.S. and similar communications between the Plaintiffs and other regulatory or government authorities; and
(e) any other communications, memoranda or documents which provide information relating to, or insight into, the decision of the Plaintiffs to withdraw the product from the market, including communications to the health authorities, health care professionals and the public.
The Prothonotary allowed Apotex's motion in part, ordering that:
The Plaintiffs shall produce further and better Affidavits of Documents which list, in Schedule I, all documents in BMS' possession, custody or control, regarding clinical data, laboratory results, statistical data or any other documents prepared or used by the Plaintiffs relating to the side effects of nefazodone generally or to the specific effects of its nefazodone product on the liver.
Effectively the Prothonotary required production of the documents described in paragraph (c), but not in paragraphs (a), (b), (d) and (e).
STANDARD OF REVIEW
[8] The standard of review to be applied by the Court in reviewing a decision of a Prothonotary was set out by the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd., [1993] F.C.J. No. 103 [Aqua-Gem] and affirmed by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450. The test was modified by the Federal Court of Appeal in Merck & Co. v. Apotex Inc., [2004] 2 F.C.R. 459 [Merck 2004], where Décary J.A. wrote for the Court at paragraph 19:
[...] Discretionary orders of prothonotaries ought not be disturbed on appeal to a judge unless:
(a) the questions raised in the motion are vital to the final issue of the case, or
(b) the orders are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts.
[9] Even if the Court would have come to a different conclusion than that of the Prothonotary, difference of view is not sufficient to ground the Court's intervention. However, if the Prothonotary's decision was clearly wrong, the Court must set aside the Prothonotary's decision and exercise its own discretion de novo. The parties agree, as does the Court, that this matter is not "vital" to the final issue of the case so that this aspect of the standard of review does not come into play.
ISSUES
[10] The issue is whether the Prothonotary was clearly wrong in restricting the production of documents with respect to the issue of inutility. Apotex submits that the learned Prothonotary:
1. erred in law and in principle in the interpretation of applicable judicial authority in relation to Apotex's plea of inutility, particularly in focusing on jurisprudence that differentiates utility between regulatory and patent contexts;
2. in arriving at her decision, took into account an irrelevant consideration by justifying the narrow scope of her order on consistency with previous orders.
3. erred in applying the relevancy test of Rule 222 of the Federal Court Rules to exclude relevant categories of documents from her order to produce further and better Affidavits of Documents;
ANALYSIS
(a) The Scope of Discovery
[11] The scope of discovery is relevance. However, a Prothonotary or Judge may decline to order a relevant question answered if:
i. the answer is not likely to advance the questioner's legal position;
ii. the answer would require much time and effort and expense and its value would appear to be minimal; and
iii. the question is part of a "fishing expedition" of vague and far reaching scope.
See Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1725 [Merck 2003], at paragraph 10 per Strayer J.A.:
The jurisprudence in this Court on the scope of discovery is well settled. For convenience it is summarized in Reading & Bates Construction Co. et al v. Baker Energy Resources Corp. et al (1988) 24 C.P.R. (3rd) 66 at 70-72 (F.C.T.D.). It is clear that the primary consideration is relevance. If a prothonotary or a judge does, however, find a question to be relevant he or she may still decline to order the question to be answered if it is not at all likely to advance the questioner's legal position, or if the answer to a question would require much time and effort and expense to obtain and its value would appear to be minimal, or where the question forms part of a "fishing expedition" of vague and far-reaching scope.
[12] In Apotex Inc. v. Merck & Co., [2004] F.C.J. No. 1270, affirmed 2005 FCA 24, Justice Martineau held at paragraph 16:
Documents that cannot be relied upon by a party or used in any way to affect any
parties' case are, by operation of these principles, fundamentally irrelevant. Discovery of such documents results in needless waste of time and resources. Judicial discretion in this area is warranted. In the present circumstance of this case, it would be contrary to the economy of the Rules that the relevance of the documents sought by Apotex should only be decided by a judge at a later stage once discoveries have been conducted.
Documents regarding liver damage may affect the utility of the patent and are clearly relevant, as decided by the Prothonotary in this case. The question to be decided by the Trial Judge is whether liver damage discovered years after the patent has been utilized, with great success, makes the patent invalid ab initio on the basis of inutility.
(b) The Relevancy Test
[13] Subrule 222(2) of the Federal Court Rules defines relevance for the purpose of discovery of documents:
| Interpretation
(2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party's case or to support another party's case.
|
Pertinence
(2) Pour l'application des règles 223 à 232 et 295, un document d'une partie est pertinent si la partie entend l'invoquer ou si le document est susceptible d'être préjudiciable à sa cause ou d'appuyer la cause d'une autre partie.
|
[14] The correct relevancy test in the specific context of discovery was set out by the Federal Court of Appeal in Everest & Jennings Canadian Ltd. v. Invacare Corp., [1984] 1 F.C. 856 and reaffirmed in SmithKline Beecham Animal Health Inc. v. Canada, [2002] F.C.J. No. 837. In Apotex v. Canada, [2005] F.C.J. No. 1021 (F.C.A.), Nadon J.A. held for the Court at paragraph 15 that the correct approach is the "train of inquiry" test, citing McEachern C.J.B.C. in Boxer and Boxer Holdings Ltd. v. Reesor, et al. (1983), 43 B.C.L.R. 352 (B.C.S.C.) at page 359:
[It is] the clear right of the plaintiffs to have access to documents which may fairly lead them to a train of inquiry which may directly or indirectly advance their case or damage the defendant's case particularly on the crucial question of one party's version of the agreement being more probably correct than the other [...]
Further, the Federal Court of Appeal in SmithKline, supra, held per Sharlow J.A. at paragraph 25 that the "train of inquiry" is the standard expressly adopted for documentary discovery.
[15] In assessing whether a document is relevant in this proceeding, the nature of the document must be examined having regard to the defendant's new ground of inutility that justified the expanded scope of discovery, which is found at paragraphs 20A and 20B of Apotex's Third Amended Statement of Defence and Counterclaim, which I repeat for ease of reference:
20A. The '436 Patent asserts that the present invention relates to compounds, including nefazodone, and inter alia, their "therapeutic use in treating depression". The '436 Patent promises that the compounds of the invention, including nefazodone, are "improved antidepressants with minimal side effect potential". The '436 Patent also asserts that the invention provides a method for treating a mammal afflicted with depression and that, in accordance with good clinical practice, the invented compounds, including nefazodone, can be administered to produce effective antidepressant effects without causing any harmful or untoward side effects.
20B. Contrary to the assertions of the '436 Patent, as aforesaid, the compounds of the '436 Patent, including nefazodone, do not meet the promise of the '436 Patent in that the compounds, including nefazodone, are not "improved antidepressants with minimal side effect potential". Thus, the compounds of the '436 Patent do not have the utility promised in the '436 Patent.
[16] This pleading can be broken down as follows:
i. the patent is for "therapeutic use in treating depression";
ii. the patent promises "improved antidepressants with minimal side effect potential";
iii. the invented drug produces "effective antidepressant effects without causing any harmful or untoward side effects"; and
iv. contrary to the promises contained in the patent, the new drug is not "an improved anti-depressant with minimal side effect potential" so that the new drug does not have the utility promised in the patent.
[17] Accordingly, one must apply the relevancy test for documentary discovery adopted in SmithKline, supra, to the facts before the Prothonotary. The question to be asked is: "Does the document sought to be produced fairly lead the defendant to a train of inquiry which may directly or indirectly advance its case or damage the plaintiffs' case specifically on the new issue of inutility?" The new issue of inutility in the defendant's amended pleadings defines the scope of relevance.
(c) Invention Utility
[18] It now falls for me to define the scope of relevance, namely the newly alleged lack of utility of the plaintiffs' invention within the meaning of section 2 of the Patent Act:
| Definitions 2.
[...]
"invention" means any new and useful art, process, machine, manufacture or composition of matter, or any
new and useful improvement in any art, process, machine, manufacture or composition of matter;
[emphasis added]
|
Définitions 2.
[...]
"invention" Toute réalisation, tout procédé, toute machine, fabrication ou composition de matières, ainsi
que tout perfectionnement de l'un d'eux, présentant le caractère de la nouveauté et de l'utilité.
[je souligne]
|
[19] In Apotex Inc. v. Wellcome Foundation Ltd., [2002] 4 S.C.R. 153, the Supreme Court of Canada opined on utility in the context of patent law at paragraph 46:
[ ...] Utility is an essential part of the definition of an "invention" (Patent Act, s. 2). A policy of patent first and litigate later unfairly puts the onus of proof on the attackers to prove invalidity, without the patent owner's ever being put in a position to establish validity. Unless the inventor is in a position to establish utility as of the time the patent is applied for, on the basis of either demonstration or sound prediction, the Commissioner "by law" is required to refuse the patent (Patent Act, s. 40).
[20] In Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd. (1981), 56 C.P.R. (2d) 145 (S.C.C.) [Consolboard], the Supreme Court of Canada explained the doctrine of inutility in patent law at page 160, having reference to Halsbury's Laws of England (3rd ed.), vol. 29, at page 59:
[Not useful] means that the invention will not work, either in the sense that it will not operate at all or, more broadly, that it will not do what the specification promises that it will do [...] the practical usefulness of the invention does not matter, nor does its commercial utility, unless the specification promises commercial utility, nor does it matter whether the invention is of any real benefit to the public, or particularly suitable for the purposes suggested.
Therefore, the question of relevance is to determine whether or not a document leads to a train of thought that may directly or indirectly advance a claim that the plaintiff's invention will not work, either in the sense that it "will not operate at all" or that it "will not do what the specification promises that it will do". The issue in this appeal is whether the learned Prothonotary was clearly wrong in her decision of relevance with respect to the documents described in paragraphs (a) (b), (d) and (e) as set out in paragraph 5 of these Reasons for Order.
(d) The Order of the Prothonotary requiring production of scientific documents
[21] In her decision, the learned Prothonotary ordered the plaintiffs produce further and better Affidavits of Documents:
The Plaintiffs shall produce further and better Affidavits of Documents which list, in Schedule I, all documents in BMS' possession, custody or control, regarding clinical data, laboratory results, statistical data or any other documents prepared or used by the Plaintiffs relating to the side effects of nefazodone generally or to the specific effects of its nefazodone product on the liver.
The documents falling within her Order broadly conform to the category of documents sought by Apotex in paragraph (c) of the order sought:
(c) clinical data, laboratory results, statistical data or any other documents prepared or used by the Plaintiffs relating to the side effects of nefazodone generally or to the specific effects of its nefazodone product on the liver;
[22] The Prothonotary held at pages 3-5 of her Order:
Apotex says that it amended its plea to allege that the '436 patent does not provide the utility promised based on Health Canada's finding of liver related side effects and the plaintiffs' subsequent withdrawal of nefazodone from the market on that account.
Health Canada's safety evaluation to the effect that the use of nefazodone poses a risk of liver related adverse effects is noted in the Health Canada Advisory announcing the market withdrawal of the drug. It is information in the public domain.
[ ...]
The issue is whether liver related side effects and documents relating to such side effects are relevant to the amended plea of inutility in the sense of the jurisprudence, namely in that if allegations regarding liver related side effects are substantiated they could affect the result of the action for patent infringement. (Apotex Inc. v. Merck & Co., [2004] F.C.J. No. 1270)
[ ...]
That said, the notion of inutility does encompass the promise of the patent. "Not useful" means "that the invention will not work, either in the sense that it will not operate at all or were broadly that it will not do what the specification promises that it will do". (Consolaboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd. (1981), 56, C.P.R. (2d) 145 (S.C.C.))
The language of Apotex's amendments that invoke the promise of the patent mirrors that of the patent as it relates to side effects.
The following is found at page 7 of the '436 patent.
"According to the forgoing assays, compounds of the formula I wherein R is meta-chloro and R is hydrogen inhibit serotonin binding and was relatively inactive with respect to dopamine receptor binding, cholinergic receptor binding, and alpha-receptor binding. The latter is particularly significant in that drugs with high affinity for alpha-receptors relative to serotonin type 2 receptors are likely to cause side effects such as sedation and blook pressure lowering. Thus, the instant compounds and particularly the above-mentioned most preferred embodiments are considered improved antidepressants with minimal side effect potential."
This next passage appears at pages 15-16 of the '436 patent.
"Another aspect of the instant invention provides a method for treating a mammal afflicted with depression which comprises administering systemically to said mammal a therapeutically effective antidepressant amount of a compound of Formula I or a pharmaceutically acceptable acid addition salt thereof ..."
" ... In accordance with food clinical practice, it is preferred to administer the instant compounds at a concentration level that will produce effective antidepressant effects without causing any harmful or untoward side effects." (emphasis added)
[ ...]
While BMS makes a strong argument, I am not satisfied that side effects other than as noted may not come within the promise of the patent, including in respect to dosage. I will partially grant Apotex's request subject to the final determination as to relevance being left to the trial judge hearing the merits of the infringement action.
I say partially, as I take Apotex's request to be too broad and for much that is in my view irrelevant. ...
[ ...]
[underlining added by the Court]
[23] I am satisfied by the foregoing that the Prothonotary found that the question of hepatic (liver) toxicity raises a triable issue on Apotex's plea of the '436 patent's inutility described at paragraphs 20A and 20B of its amended pleadings.
[24] In my view it was not clearly wrong for the Prothonotary to decide that the scientific documents falling within the parameters of her order are relevant to the extent that:
(a) inutility may relate to nefazodone not doing what the patent specification promises it will do; and
(b) the hepatotoxic side effect and general side effects of nefazodone may, at trial, be held to fall short of a promise as to side effects.
The documents containing clinical data, laboratory results and statistical data that may substantiate hepatic toxicity or side effects generally lead to a train of inquiry that may advance a claim that the invention does not work, subject of course to the ultimate determination of legal relevance by the Trial Judge. In the context of documentary discovery, however, the train of inquiry test is satisfied for this category of documents sought by Apotex.
(e) The documents excluded by the Order of the Prothonotary
[25] Apotex submits that the Order excluding the remaining categories for which it sought production fell short of disclosing all relevant documents. In Apotex's view, since the Prothonotary found that the question of liver toxicity was relevant, she erred in excluding the other document classes, which the defendant believes contain information regarding nefazodone's adverse hepatic effects.
[26] The four categories of documents excluded relate to the withdrawal of the drug from the market, and communications with health authorities. The Prothonotary held that these categories of documents were "too broad and irrelevant". As the Supreme Court of Canada held in Apotex v. Wellcome, supra, per Binnie J. at paragraph 77:
... The prerequisites of proof for a manufacturer who wishes to market a new drug are directed to a different purpose than patent law. The former deals with safety and effectiveness. The latter looks at utility, but in the context of inventiveness. The doctrine of sound prediction, in its nature, presupposes that further work remains to be done.
The Prothonotary bore this distinction in mind. The four categories of documents sought by Apotex relate to the withdrawal of the drug from the market, which the plaintiff maintains was for regulatory requirements of safety and effectiveness, and not because the drug is not useful in treating depression or that the drug does not meet its promises with respect to side effects. The documents related to the withdrawal of the drug from the market and to communications with health authorities in Canada and the U.S. are relevant for a different purpose than patent law. For that reason, I cannot find that the Prothonotary was "clearly wrong" in the exercise of her discretion. These categories of documents are "too broad and irrelevant".
[27] However, I would add in obiter that documents of any kind which contain information relating nefazodone to hepatic toxicity are relevant, and would be subject to production if requested. These documents would include internal memoranda, correspondence to regulatory authorities and to health professionals. Such documents would satisfy the trail of inquiry test and meet the standard of relevance. The fact that these documents may not contain objective scientific evidence goes to their weight, not their relevance.
(f) "Side Effects" in the patent
[28] BMS submits that its patent specification restricts its promises concerning side effects to two narrow scopes:
1. in the case of the "minimal side effect[s]" averred to at page 7 of the '436 patent, such are restricted to physiological effects likely arising from α-adrenergic receptor activity, commonly sedation and decreased blood pressure; and
2. in the case of "harmful or untoward side effects" cited at page 16 of the '436 patent, such are limited to those relating to nefazodone's dosage.
BMS further submits that hepatic toxicity falls into neither promise, and therefore no documents regarding hepatic toxicity would be relevant to the claim of inutility at trial.
[29] I cannot agree with BMS' position on relevance. Construing the patent to decide on the meaning of side effects in the patent is an issue for the Trial Judge. For the purpose of documentary discovery, the scope of relevance captures documents pertaining to this issue in dispute. Apotex's recent challenge to the utility of BMS' invention is, by reason of its amended pleadings, such an issue in dispute.
(g) The issue of liver toxicity
[30] The Prothonotary concluded, and I agree, that the issue of liver toxicity is relevant to the issue of patent utility at trial. In Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd., [1995] F.C.J. No. 620 the Federal Court of Appeal held per Décary J. at paragraph 19 that, "[t]he patent as a whole, and not only the claims, must be considered when assessing the utility of an invention." In construing a patent, Dickson J. explained for the Supreme Court of Canada in Consolboard, supra, at pages 520-521, cited with approval in Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067:
We must look to the whole of the disclosure and the claims to ascertain the nature of the invention and methods of its performance, ([1950] S.C.R. 36">Noranda Mines Limited v. Minerals Separation North American Corporation, [1950] S.C.R. 36), being neither benevolent nor harsh, but rather seeking a construction which is reasonable and fair to both patentee and public.
I am mindful at this stage to make no determination on the merits as to the ultimate relevance of hepatic toxicity to patent utility. Given that the '436 patent's utility is a material issue in dispute, it falls for me to decide only whether hepatic toxicity is relevant to that issue at the discovery stage so as to require production of documents to be either weighed or dismissed by the trier of fact. To this end, the patent must be read with a view to determine what the entire patent, including claims and disclosure, would have meant to a workman skilled in the art to which the invention relates. I am satisfied, seeking a construction that is reasonable and fair to both public and patentee, that an argument exists that hepatic toxicity may fall within the meaning of "minimal side effect potential" or "harmful or untoward side effects" at pages 7 and 15 of BMS's '436 patent disclosure. The Court finds that documents relating nefazodone to hepatic toxicity are relevant to the issue of utility at the discovery stage.
[31] I am mindful that the Court is making no decision regarding the relevance of liver toxicity to the real utility of the invention in question, only to the promises concerning side effects in the patent disclosure. As discussed above, the practical usefulness of an invention does not matter, nor does its commercial utility, unless the patent specification or disclosure promises commercial utility or in this case, minimal side effects. In this case, the patented medicine was an effective and useful antidepressant for many years until it was withdrawn. Accordingly, the drug was relied upon to do what it was designed to do. At the same time, if the drug causes serious side effects with respect to the liver, that fact may raise a utility issue. At this point, the plaintiff does not agree that the drug does cause serious side effects with the liver.
CONCLUSION
[32] As the current order for production sought is too broad, it smacks of an attempt to engage in a fishing expedition which the Court will not allow. See Pharmacia S.p.A. v. Faulding (Canada) Inc. (1999), 3 C.P.R. (4th) at 126 per MacDonald J.A. at paragraph 3 (F.C.A.). I am not satisfied that the learned Prothonotary was clearly wrong in finding that the order sought by Apotex with respect to documents identified in paragraphs (a), (b), (d) and (e) cast too broad a net, and sought to capture documents which were not relevant to whether nefazodone poses a risk of causing serious liver related side effects so as not to be useful in treating depression with minimal side effect potential, as promised in the patent specification.
[33] Documents regarding the decision of the plaintiffs to withdraw the drug from the market relate to a regulatory issue. However, documents which relate to the nefazodone posing a serious risk to the liver relate to side effects, are relevant, and if sought on discovery, ought be produced. Such documents would include internal memoranda within the corporate plaintiffs, and correspondence with regulators and health professionals. With this obiter dictum, I find that success on this appeal is divided so that the costs of this appeal should be in the cause.
ORDER
THIS COURT ORDERS THAT:
This appeal of the Order of the Prothonotary dated April 4, 2005 is dismissed with costs in the cause.
"Michael A. Kelen"
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