Abbott Laboratories v. Lifescan Canada Ltd., 2001 FCT 303

                                                                                   Date: 20010409

                                                                              Docket: T-2061-99

                                                           Neutral Citation: 2001 FCT 303

Between:

                            ABBOTT LABORATORIES and

                       ABBOTT LABORATORIES, LIMITED

                                                                                                Plaintiffs

                                                 - and -

                LIFESCAN CANADA LTD., LIFESCAN, INC.

                                    and SELFCARE, INC.

                                                                                           Defendants

                                  REASONS FOR ORDER

Muldoon, J.

[1]         This is a motion by the plaintiffs, Abbott Laboratories and Abbott Laboratories Limited, to allow an appeal from the order of Associate Senior Prothonotary Giles, dated September 27, 2000, and to strike out certain paragraphs from the statement of defence and counterclaim of the defendants LifeScan Canada Ltd. and LifeScan Inc. (LifeScan), and from the statement of defence and counterclaim of the defendant Selfcare Inc. (Selfcare). The plaintiffs seek :

...

2.              An order striking paragraphs 11, 12, 13 and 14(a)(2) and 14(b) (as it relates to the products of Bayer and Boehringer) of the further amended statement of defence and counterclaim of Selfcare Inc. dated April 7, 2000 (the .April Selfcare Defence");

...

3.              An order striking paragraph 40(d) of the further amended statement of defence and counterclaim of LifeScan Canada Ltd. and LifeScan, In. dated April 10, 2000 (the .April LifeScan Defence")

1. Facts

The Main Action

[2]         The plaintiffs commenced an action on November 23, 1999, against the defendants alleging infringement of Canadian Patent N⁰ 1,226,036 regarding sensors and apparatus to detect, to measure, and to monitor blood glucose levels. LifeScan and Selfcare have defended the action by claiming that the said patent 1,226,036 is invalid, or that their product does not infringe it. The defendants have also raised the defences of acquiescence, laches and delay.

Previous Pleadings

LifeScan

[3]         LifeScan's statement of defence and counterclaim was filed on February 21, 2000. It was subsequently amended under Court rule 200 on March 3, 2000, and again on March 20, 2000.

[4]         By motion dated March 22, 2000, the plaintiffs sought to strike out paragraphs 37, 38, 39, and portions of paragraph 40 from LifeScan's "Twice Amended Statement of Defence and Counterclaim" dated March 20, 2000. In effect, the plaintiffs sought to strike out the defences of laches, delay and estoppel by acquiescence. The following paragraphs were the subject of the motion:

LACHES, DELAY AND ESTOPPEL

36.          LifeScan Canada has sold the FastTake blood glucose monitoring system in Canada since at least as early as April 1998. The Plaintiffs have been aware of these sales since that date.

37.          Bayer Inc. has sold its Glucometer Elite blood glucose monitoring strips (the "Glucometer Strips") in Canada since at least as early as 1993, and elsewhere through related companies, since at least as early as 1992. The Glucometer Strips are strips that function electrochemically and are used for the selective detection measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

38.            Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) has sold its Accuchek Advantage blood glucose monitoring strips (the "Accuchek Strips") in Canada, and elsewhere through related companies, since at least as early as 1994. The Accuchek Strips are strips that function electrochemically and are used for the selective detection, measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

39.           The Plaintiffs have not commenced an action for infringement of the ‘036 Patent against Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) in Canada, or commenced an action for infringement of any foreign patent corresponding to the ‘036 Patent in any other jurisdiction.

40.            In the alternative to the defences set out above, the LifeScan Defendants state that the Plaintiffs are estopped from asserting any alleged patent rights, and are estopped from bringing this action, or, in the alternative, are estopped from claiming damages or profits resulting from the sale in Canada of the FastTake blood glucose monitoring system, or, further in the alternative, are or should be denied the right, or entitlement, to sue for the equitable relief of profits and a permanent injunction, by reason of laches and estoppel by acquiescence, laches or delay arising from:

(a)           the Plaintiffs' knowledge (and the knowledge of the Plaintiffs' predecessors-in-title) of the LifeScan Defendants' alleged infringing activities;

(b)           the Plaintiffs' (and their predecessors-in-title) representations to Selfcare, Inc. that they did not regard the FastTake Test Strips, or the Glucometer Strips or Accuchek Strips, as an infringement of the ‘036 Patent, on which the Plaintiffs have relied, and the Plaintiffs (and their predecessors-in-title) allowing the LifeScan Defendants to continue with the alleged infringing activities, all to the detriment of the LifeScan Defendants;

(c)           the Plaintiffs' delay and acquiescence in commencing this action, including the delay and acquiescence of the Plaintiffs' predecessors-in-title; and

(d)           the fact that neither the Plaintiffs nor their predecessors-in-title commenced action for infringement of the ‘036 Patent against either Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) or, in other jurisdictions, against their respective related companies.

[5]         On March 27, 2000, Prothonotary Lafrenière stuck out paragraphs 37 and 38 from LifeScan's twice amended statement of defence and counterclaim dated March 20, 2000, with leave to amend:

1.            Paragraphs 37 and 38 of the twice amended statement of defence and counterclaim of LifeScan Canada Ltd. and LifeScan, Inc. are hereby struck with leave granted to LifeScan Canada Ltd. and LifeScan, Inc. to amend such paragraphs.

2.             The defendants LifeScan Canada Ltd. and LifeScan Inc. shall serve and file a further amended statement of defence and counterclaim, if any, on or before April 10, 2000.

3.             The plaintiffs shall serve and file a reply and defence to counterclaim, if any, on or before April 25, 2000.

4.            Costs in the cause.

[6]         The plaintiffs did not appeal this order, and on April 10, 2000, LifeScan amended its statement of defence and counterclaim:

LACHES, DELAY AND ESTOPPEL

36.            LifeScan Canada has sold the FastTake Test Strips for use in a blood glucose monitoring system sold under the trade-mark FastTake Blood Glucose Monitoring System in Canada since at least as early as April 1998. The Plaintiffs have been aware of these sales since that date.

37.            Bayer Inc. has sold its Glucometer Elite blood glucose monitoring strips (the "Glucometer Strips") in Canada since at least as early as 1993, and elsewhere through related companies, since at least as early as 1992. The Glucometer Strips are electrochemical sensors for the selective detection, measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

38.           Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) has sold its Accuchek Advantage blood glucose monitoring strips (the "Accuchek Strips") in Canada, and elsewhere through related companies, since at least as early as 1994. The Accuchek Strips are electrochemical sensors for the selective detection, measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

39.            The Plaintiffs have not commenced an action for infringement of the ‘036 Patent against Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) in Canada, or commenced an action for infringement of any foreign patent corresponding to the ‘036 Patent in any other jurisdiction.

40.            In the alternative to the defences set out above, the LifeScan Defendants state that the Plaintiffs are estopped from asserting any alleged patent rights, and are estopped from bringing this action, or, in the alternative, are estopped from claiming damages or profits resulting from the sale in Canada of the FastTake Blood Glucose Monitoring System, or, further in the alternative, are or should be denied the right, or entitlement, to sue for the equitable relief of profits and a permanent injunction, by reason of laches and estoppel by acquiescence, laches or delay arising from:

(a)            the Plaintiffs' knowledge (and the knowledge of the Plaintiffs' predecessors-in- title) of the LifeScan Defendants' alleged infringing activities;

(b)           the Plaintiffs' (and their predecessors-in-title) representations to Selfcare, Inc. and to the LifeScan Defendants that they did not regard the FastTake Test Strips, or the Glucometer Strips or Accuchek Strips, as an infringement of the ‘036 Patent, on which the LifeScan Defendants have relied, and the Plaintiffs (and their predecessors-in-title) allowing the LifeScan Defendants to continue with the alleged infringing activities, all to the detriment of the LifeScan Defendants;

(c)            the Plaintiffs' delay and acquiescence in commencing this action, including the delay and acquiescence of the Plaintiffs' predecessors-in-title; and

(d)           the fact that neither the Plaintiffs nor their predecessors-in-title commenced action for infringement of the ‘036 Patent against either Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) or, in other jurisdictions, against their respective related companies.

Selfcare

[7]         Selfcare's statement of defence and counterclaim was filed on February 10, 2000. It was subsequently amended under Court rule 200 on March 10, 2000.

[8]         By motion dated March 22, 2000, the plaintiffs sought to strike out paragraphs 11, 12, 13 and 14 from Selfcare's amended statement of defence and counterclaim dated March 10, 2000. As with LifeScan, the plaintiffs sought to strike the defences of laches, delay and estoppel by acquiescence. The following paragraphs were the subject of the motion:

Laches and Acquiescence

10.            Lifescan Canada has sold FastTake strips in Canada since at least as early as January 1998. The plaintiffs have been aware of these sales since that date.

11.            Bayer Inc. ("Bayer") has sold its Glucometer Elite blood glucose monitoring strips in Canada since at least the early 1990's. The plaintiffs have been aware of those sales since that date. Bayer's Glucometer Elite blood glucose monitoring strips are electrochemical sensors for the selective detection, measurement, or monitoring of glucose in a blood sample.

12.          Boehringer Mannheim ("Boehringer") has sold its Accu-Chek blood glucose monitoring strips in Canada since at least the early 1990's. The plaintiffs have been aware of those sales since that date. Boehringer's Accu-Chek blood glucose monitoring strips are electrochemical sensors for the selective detection, measurement, or monitoring of glucose in a blood sample.

13.            The plaintiffs have not commenced an action for infringement of the ‘036 patent against Bayer or Boehringer.

14.          Selfcare states that the plaintiffs are estopped from asserting any alleged rights against Selfcare, by reason of the plaintiffs' delay and acquiescence, including the delay and acquiescence of the predecessors in title of the plaintiffs, in commencing this action against Selfcare, and the fact that neither the plaintiffs nor their predecessors in title commenced action for infringement of the ‘036 patent against Bayer or Boehringer. The plaintiffs and their predecessors in title represented that they did not regard the defendants' product or the aforementioned products of Bayer and Boehringer as being a violation of the alleged rights in the ‘036 patent. Selfcare relied to its prejudice on such representations in carrying on its business activities and, in particular, in its research and development activities, and in creating and developing a market for FastTake blood monitoring systems and strips.

15.          Selfcare states that the plaintiffs are estopped from bringing this action, or, in the alternative, are estopped from obtaining any relief in respect of the importation or sale of FastTake strips, due to laches and acquiescence.

[9]         On March 27, 2000, Prothonotary Lafrenière struck out paragraphs 11, 12, and 14 from Selfcare's amended statement of defence and counterclaim, with leave to amend:

1.            Paragraphs 11, 12 and 14 of the amended statement of defence and counterclaim of Selfcare, Inc. are hereby struck with leave granted to Selfcare, Inc. to amend such paragraphs.

2.            The defendant Selfcare, Inc. shall serve and file a further amended statement of defence and counterclaim, if any, on or before April 10, 2000.

3.            The plaintiffs shall serve and file a reply and defence to counterclaim, if any, on or before April 25, 2000.

4.            Costs in the cause.

[10]       The plaintiffs did not appeal the order, and on April 7, 2000, Selfcare once again amended its statement of defence and counterclaim:

Laches and Acquiescence

10.           Lifescan Canada has sold FastTake blood glucose monitoring strips in Canada since at least as early as January 1998. The plaintiffs have been aware of these sales since that date. Lifescan Canada's FastTake blood glucose monitoring strips are electrochemical sensors for the selective detection, measurement, or monitoring of glucose in a blood sample.

11.           Bayer Inc. ("Bayer") has sold its Glucometer Elite blood glucose monitoring strips in Canada since at least the early 1990's. The plaintiffs have been aware of those sales since that date. Bayer's Glucometer Elite blood glucose monitoring strips are electrochemical sensors for the selective detection, measurement, or monitoring of glucose in a blood sample.

12.           Boehringer Mannheim ("Boehringer") has sold its Accu-Chek blood glucose monitoring strips in Canada since at least the early 1990's. The plaintiffs have been aware of those sales since that date. Boehringer's Accu-Chek blood glucose monitoring strips are electrochemical sensors for the selective detection, measurement, or monitoring of glucose in a blood sample.

13.           The plaintiffs have not commenced an action for infringement of the ‘036 patent against Bayer or Boehringer.

14.(a)       In view of the facts pleaded in paragraphs 10 through 13, the plaintiffs are estopped from asserting any alleged rights against Selfcare, by reason of the plaintiffs' delay and acquiescence,

(1)          including the delay and acquiescence of the predecessors in title of the plaintiffs, in commencing this action against Selfcare; and

(2)           the fact that neither the plaintiffs nor their predecessors in title commenced action for infringement of the ‘036 patent against Bayer or Boehringer.

(b)           The plaintiffs and their predecessors in title, by reason of the aforementioned delay and acquiescence, represented to Selfcare that they did not regard the defendants' product or the aforementioned products of Bayer and Boehringer as being a violation of the alleged rights in the ‘036 patent. Selfcare relied to its prejudice on such representations in carrying on its business activities and, in particular, in its research and development activities, and in creating and developing a market for FastTake blood monitoring systems and strips. As a consequence, the plaintiffs are estopped from obtaining any relief against the defendants.

(c)            In the alternative to paragraphs (a) and (b) above, by virtue of the facts alleged, the plaintiffs are not entitled to any equitable relief against the defendants including injunctive relief, delivery up or an accounting of profits.

15.          Selfcare states that the plaintiffs are estopped from bringing this action, or, in the alternative, are estopped from obtaining any relief in respect of the importation or sale of FastTake strips, due to laches and acquiescence.

The Appeal before this Court

[11]       By motion dated April 25, 2000, the plaintiffs sought to strike out paragraphs 37, 38, 39, 40(b) and 40(d) from LifeScan's amended statement of defence and counterclaim dated April 10, 2000. The plaintiffs also brought a motion to strike out paragraphs 11, 12, 13 and 14 from Selfcare's further amended statement of defence and counterclaim dated April 7, 2000.

[12]       On September 27, 2000, Associate Senior Prothonotary Giles delivered the following reasons:

[l] Before me were two motions seeking to strike paragraphs from two statements of defence which are not precisely similar in form. The paragraphs make allegations purporting to support defences of laches and acquiescence based on the alleged long time toleration of alleged infringement. Motions to strike were originally heard by prothonotary Lafrenière who struck with leave thereby indicating that a properly pleaded defence of laches or acquiescence should be allowed. That decision was not appealed and is not therefore open to me to consider whether such defences could successfully be argued.

[2] From reading the paragraphs alleging facts which could base the defence of laches or acquiescence, it is apparent that a similarity should be alleged between the products of the Defendants and those of the other corporations not parties who are mentioned (Bayer Inc. ("Bayer") and Boehringer Mannheim ("Boehringer")). It is also apparent that some connection between the delay or acquiescence and the conduct of the Defendants must be alleged.

[3] The amended defence of Selfcare Inc. in my view satisfied the requirement on alleging similarity between its strips and the strips of Bayer and Boehringer by describing the strips in the same language. In addition, the alleged representation to Selfcare Inc. on which it is alleged Selfcare relied to its detriment are set out in paragraph 14(b). The motion with respect to Selfcare will be dismissed.

[4] With regard to the amended defence of Lifescan Canada Ltd. and Lifescan, Inc. the description in paragraph 36 of the strips sold by Lifescan Canada Ltd. is not the same as the description of the strips alleged to be sold by Bayer and Boehringer in paragraphs 37 and 38.

[5] Therefore, there is insufficient particularity in the pleading with regard to the relationship between the strips of Bayer and Boehringer on the one hand and the strips of Lifescan Canada Ltd. on the other. Paragraphs 37 and 38 will be struck, the words "commenced an action for infringement of the 036 patent against Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Ltd.) in Canada or" will be struck from paragraph 39 and the words "or the Glucometer Strips or Accuchek Strips" will be struck from paragraph 40(b).

ORDER

[6] The motion with respect to Selfcare Inc. is dismissed. Paragraphs 37 and 38 and the words "commenced an action for infringement of the 036 patent against Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann- LaRoche Ltd.) in Canada or" from paragraph 39 and the words "or the Glucometer Strips or Accuchek Strips" from paragraph 40(b) will be struck out of the defence of Lifescan Canada Ltd. and Lifescan, Inc. The Lifescan Defendants shall pay one half the costs of the day to the Plaintiffs and the Plaintiffs shall pay one half the costs of the day to Selfcare Inc. Both sets of costs being in the cause.

2. Representations

The Plaintiffs

[13]       The plaintiffs submit that, Giles, Associate Senior Prothonotary, erred in law by holding that a defence of laches and acquiescence based on the sale of products by third parties to the litigation can be sustained by alleging a similarity between the products of the defendants and those of the third parties, and by demonstrating some connection between the delay or acquiescence against those third parties and the conduct of the defendants.

[14]       The plaintiffs conceded during this motion that a named defendant may plead a defence of laches and acquiescence based on delay against a third party to the litigation, but only if the named defendant pleads facts which, if proved, place the named defendant in the same position in equity as the third party.

[15]       Therefore, to raise the defence of laches and acquiescence here, the defendants must allege that:

(a)        the defendants' product is identical to or not substantively different (when viewed in light of the patent claims) from the third parties' products; or

(b)        the third parties' product infringes the patent in suit.

[16]       The plaintiffs submit that the defendants have not indicated in their pleadings that their product is identical or even substantially similar to the third party products, nor do they allege that the third party products come within the scope of the patent in suit. Therefore, the defendants have not pleaded any facts which enable them to rely on the alleged delay and acquiescence against the third parties. Because the defendants have failed to plead a connection between their product and the products of the third parties, the allegations of laches and acquiescence should be struck.

[17]       Alternatively, the plaintiffs submit that Giles, Associate Senior Prothonotary, erred in law by holding that the similarity requirement was met by describing the products in generic language. Any requirement of similarity can be met only by describing all products in light of the claims of the patent in issue.

The Defendants

[18]       The plaintiffs have conceded for this motion that the defendants may rely on the plaintiffs' delay or inaction against third parties as the basis of a defence of laches and acquiescence. Moreover, Prothonotary Lafrenière held that the defendants could rely on the these defences. Therefore, the only issue before Associate Senior Prothonotary Giles was whether the defendants' respective statements of defence and counterclaims contained sufficient particulars. His order was discretionary and should not be disturbed on appeal.

[19]       In Canada v. Aqua-Gem Investments Ltd.^[1], the Federal Court of Appeal held that discretionary orders of a prothonotary should not be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of the discretion was based on a wrong principle or on a misapprehension of the facts, or they raise questions vital to the final issue of the case.    In 1029894 Ontario Inc. v. Dolomite Svenska^[2], Madam Justice Sharlow held that a prothonotary's order for particulars is not vital to any final issue and must stand on appeal unless it was based on an error of fact or law.

[20]       In Canada (A.G.) v. Inuit Tapirisat of Canada^[3], the Supreme Court of Canada held that pleadings will be struck only in plain and obvious cases and where it is beyond doubt that they will not succeed. This test was confirmed in Hunt v. Carey Canada Inc.^[4]

[21]       Selfcare submits that Giles, Associate Senior Prothonotary, did not err in dismissing the motion against it. In any event, Selfcare submits that its description of the defendants' product and the products of third parties is sufficient because it uses the same language expressed by the plaintiffs in subparagraph 13(a) of the plaintiffs' statement of claim:

13.           Since at least as early as 1998, the defendants have imported and sold in Canada electrode strips for use in a blood glucose monitoring system sold under the name FastTake Blood Glucose Monitoring System. Such strips:

(a)           are for selective detection, measurement or monitoring of the level of glucose in a blood sample; ...

[22]       LifeScan undertook during oral arguments to amend its statement of defence and counterclaim to conform with the order issued by Associate Senior Prothonotary Giles. In Larden v. Canada^[5], Prothonotary Hargrave held that an amendment should be allowed when a claim might possibly succeed if the pleading were amended. The Court may deny an amendment only when there is no scintilla of a cause of action. LifeScan proposes the following amendment: in order to comply with Associate Senior Prothonotary Giles' Order:

LACHES, DELAY AND ESTOPPEL

36.          LifeScan Canada has sold the FastTake Test Strips for use in a blood glucose monitoring system sold under the trade-mark FastTake Blood Glucose Monitoring System in Canada since at least as early as April 1998. The FastTake Test Strips are electrochemical sensors for the selective detection measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of these sales since that date.

37.            Bayer Inc. has sold its Glucometer Elite blood glucose monitoring strips (the "Glucometer Strips") in Canada since at least as early as 1993, and elsewhere through related companies, since at least as early as 1992. The Glucometer Strips are electrochemical sensors for the selective detection, measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

38.           Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) has sold its Accuchek Advantage blood glucose monitoring strips (the "Accuchek Strips") in Canada, and elsewhere through related companies, since at least as early as 1994. The Accuchek Strips are electrochemical sensors for the selective detection, measurement and monitoring of the level of glucose in a blood sample. The Plaintiffs have been aware of those sales since that date.

39.            The Plaintiffs have not commenced an action for infringement of the ‘036 Patent against Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) in Canada, or commenced an action for infringement of any foreign patent corresponding to the ‘036 Patent in any other jurisdiction.

40.            In the alternative to the defences set out above, the LifeScan Defendants state that the Plaintiffs are estopped from asserting any alleged patent rights, and are estopped from bringing this action, or, in the alternative, are estopped from claiming damages or profits resulting from the sale in Canada of the FastTake Blood Glucose Monitoring System, or, further in the alternative, are or should be denied the right, or entitlement, to sue for the equitable relief of profits and a permanent injunction, by reason of laches and estoppel by acquiescence, laches or delay arising from:

(a)            the Plaintiffs' knowledge (and the knowledge of the Plaintiffs' predecessors-in- title) of the LifeScan Defendants' alleged infringing activities;

(b)           the Plaintiffs' (and their predecessors-in-title) representations to Selfcare, Inc. and to the LifeScan Defendants that they did not regard the FastTake Test Strips, or the Glucometer Strips or Accuchek Strips, as an infringement of the ‘036 Patent, on which the LifeScan Defendants have relied, and the Plaintiffs (and their predecessors-in-title) allowing the LifeScan Defendants to continue with the alleged infringing activities, all to the detriment of the LifeScan Defendants;

(c)            the Plaintiffs' delay and acquiescence in commencing this action, including the delay and acquiescence of the Plaintiffs' predecessors-in-title; and

(d)           the fact that neither the Plaintiffs nor their predecessors-in-title commenced action for infringement of the ‘036 Patent against either Bayer Inc. or Boehringer Mannheim Canada Ltd. (now Hoffmann-La Roche Limited) or, in other jurisdictions, against their respective related companies.

3. Decision

[23]       This Court agrees with the defendants. The standard for the plaintiffs to meet here is stated in Canada v. Aqua-Gem Investments Ltd. The issues raised before Giles, Associate Senior Prothonotary, were not vital to the final issue of the case, nor was his exercise of discretion based on a misapprehension of facts. Now then, the plaintiffs argue that the learned prothonotary exercised his discretion based on a wrong principle, and they offer alternative principles (see paragraph 15 supra) upon which this Court might overturn the order. However, the effect of the plaintiffs' suggestions would render Prothonotary Lafrenière's decision nugatory. The motion which was before Associate Senior Prothonotary Giles was in substance a demand for particulars. As such, his disposition of it is entitled to deference.

[24]       The appeal is dismissed. Associate Senior Prothonotary Giles' order dismissing the motion against Selfcare stands. LifeScan is ordered to amend its amended statement of defence and counterclaim dated April 10, 2000, in accordance with the undertaking made during oral arguments before this Court; in any event before or at_close of business on Friday, April 27, 2001.

[25]       Costs shall be payable by the plaintiffs in favour of the Lifescan defendants jointly and in favour of Selfcare, Inc., in any event of the cause, or the parties may wish to agree on costs.

                                                                                                   Judge

OTTAWA, Ontario

April 9 , 2001

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-2061-99

STYLE OF CAUSE:ABBOTT LABORATORIES ET AL. v.

LIFESCAN CANADA LTD. ET AL.

                                                     

PLACE OF HEARING:                                 TORONTO

DATE OF HEARING:                                   DECEMBER 4, 2000

REASONS FOR ORDER OF MULDOON, J.

DATED:                     APRIL 9, 2001

APPEARANCES:

DAVID M. REIVE                                         FOR THE PLAINTIFFS

MICHAEL D. CRINSON

L.E. TRENT HORNE                                   FOR THE DEFENDANT

                                                                               SELFCARE, INC.

R. SCOTT MacKENDRICK                     FOR THE DEFENDANTS

                                                              LIFESCAN CANADA LTD.

                                                                      AND LIFESCAN, INC.

SOLICITORS OF RECORD:

DIMOCK STRATTON CLARIZIO              FOR THE PLAINTIFFS

TORONTO

SIM, HUGHES, ASHTON & McKAY        FOR THE DEFENDANT

TORONTO                                                             SELFCARE, INC.

AIRD & BERLIS                                       FOR THE DEFENDANTS

TORONTO                                            LIFESCAN CANADA LTD.

                                                                      AND LIFESCAN, INC.

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