Date: 20000927
Docket: T-2061-99
BETWEEN:
ABBOTT LABORATORIES and
ABBOTT LABORATORIES, LIMITED
Plaintiffs
-and-
LIFESCAN CANADA LTD., LIFESCAN, INC.
and SELFCARE, INC.
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] 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-LaRoche 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.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
September 27, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ABBOTT LABORATORIES and |
ABBOTT LABORATORIES, LIMITED
Plaintiffs
-and-
LIFESCAN CANADA LTD., LIFESCAN, INC.
and SELFCARE, INC.
Defendants
| DATE OF HEARING: MONDAY, MAY 8, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
| DATED: WEDNESDAY, SEPTEMBER 27, 2000 |
| APPEARANCES BY: Mr. David Reive |
For the Defendant, Selfcare Inc.
Mr. Scott MacKendrick
For the Defendant, Lifescan, Inc.
| SOLICITORS OF RECORD: Dimock Stratton Clarizio |
Barristers & Solicitors
Box 102
3202-20 Queen St. W.
Toronto, Ontario
M5H 3R3
Smart & Biggar
Barristers & Solicitors
Box 111
1500-438 University Ave.
Toronto, Ontario
M5G 2K8
| For the Defendant, Selfcare Inc. |
Aird & Berlis
Barristers & Solicitors
BCE Place, 181 Bay Street
Suite 1800, Box 754
Toronto, Ontario
M5J 2T9
For the Defendant, Lifescan, Inc.
FEDERAL COURT OF CANADA
Date: 20000927
Docket: T-2061-99
BETWEEN:
ABBOTT LABORATORIES, LIMITED
Plaintiffs
-and-
LIFESCAN CANADA LTD., LIFESCAN, INC.
and SELFCARE, INC.
Defendants
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