Date: 20041130
Docket: T-808-98
Citation: 2004 FC 1673
OTTAWA, ONTARIO, NOVEMBER 30, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
JOHNSON & JOHNSON INC.,
EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Plaintiffs
- and -
ARTERIAL VASCULAR ENGINEERING CANADA, INC.,
MEDTRONIC AVE., INC. and MEDTRONIC OF CANADA LTD.
Defendants
REASONS FOR ORDER AND ORDER
[1] This motion arises in the context of an infringement action whereby the plaintiffs allege that the defendants have infringed Canadian Patent No. 1,281,505 ('505 Patent), Canadian Patent No. 1,338,303 ('303 Patent), Canadian Patent No. 1,330,186 ('186 Patent), and Canadian Patent No. 1,322,628 which is not in issue here.
[2] The defendants move for partial summary judgment dismissing all claims in this action that are founded on the '505 Patent, the '303 Patent and the '186 Patent (collectively, the patents in issue) and declare that the patents in issue are invalid, void and of no force or effect, and further request impeachment of same, the costs of this motion and of the within action as it relates to the patents in issue.
[3] The defendants' motion for summary judgment was heard on June 24, 2003, together with a similar motion made by Boston Scientific Ltd./Boston Scientifique Ltée (Boston) who is also being sued by the plaintiffs in another action alleging infringement of the patents in issue (file T-1822-97).
[4] The grounds raised by the defendants in the within motion and the grounds of opposition pleaded by the plaintiffs are virtually the same as the ones which have been considered and disposed of by this Court in file T-1822-97, 2004 FC 1672. Differences in the pleadings of the parties in the present case are relatively minor and do not materially affect the reasoning and result reached by the Court. The reasons for order provided by the Court in Boston Scientific Ltd. are accordingly referred to and included in the present reasons for order.
[5] For the reasons stated above and in Boston Scientific Ltd., and for the additional reasons pleaded by the defendants in the alternative, an order shall issue below granting the motion for partial summary judgment, dismissing all claims in this action that are founded on the patents in issue and declaring that the patents in issue are invalid, void and of no force or effect.
[6] As indicated at the close of the hearing, the Court will make no order at this time as to costs. Accordingly, parties are directed to serve and file their submissions on costs and any request for further directions in this regard within 45 days of the present decision.
ORDER
THIS COURT ORDERS:
1. The motion for partial summary judgment brought forward by the defendants is granted.
2. All claims in this action that are founded on Canadian Patent No. 1,281,505, Canadian Patent No. 1,338,303 and Canadian Patent No. 1,330,186 (the patents in issue) are dismissed.
3. The patents in suit are declared to be invalid, void and of no force or effect.
4. There will be no determination at this time as to costs. Parties are directed to serve and file their submissions on costs and any request for further directions in this regard within 45 days of the present order.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-808-98
STYLE OF CAUSE: JOHNSON & JOHNSON INC., EXPANDABLE GRAFTS PARTNERSHIP and CORDIS CORPORATION v. ARTERIAL VASCULAR ENGINEERING CANADA, INC., MEDTRONIC AVE., INC. and MEDTRONIC OF CANADA LTD.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 24, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: NOVEMBER 30, 2004
APPEARANCES:
DONALD M. CAMERON FOR THE PLAINTIFFS
R. SCOTT MacKENDRICK
ALLYSON WHYTE NOWAK
RICHARD NAIBERG FOR THE DEFENDANTS
SOLICITORS OF RECORD:
OGILVY RENAULT FOR THE PLAINTIFFS
TORONTO, ONTARIO
GOODMANS LLP FOR THE DEFENDANTS
TORONTO, ONTARIO
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