Genencor International, Inc. v. Canada (Commissioner of Patents), 2009 FC 757

Federal Court

Cour fédérale

 

Date: 20090727

Docket: T-262-06

Citation: 2009 FC 757

BETWEEN:

GENENCOR INTERNATIONAL, INC.

Appellant

and

 

COMMISSIONER OF PATENTS

and

ATTORNEY GENERAL OF CANADA

Respondents

 

 

 

 

ASSESSMENT OF COSTS – REASONS

 

DIANE PERRIER, ASSESSMENT OFFICER

 

[1]               On May 22, 2008, the Court dismissed the appeal from a decision of a re-examination board dated November 16, 2005 determining that claims 1 to 21 of Canadian Patent No. 2,093,422 are unpatentable and are cancelled with costs on the ordinary scale in favour of the respondent, the Attorney General of Canada, payable by the appellant, Genencor International, Inc. (Genencor).

 

[2]               Following the judgment of the Court, Genencor produced for taxation four bills of costs encompassing four interlocutory motions in relation with the proposed respondent/intervenor, Novozymes A/S, in the present file.

 

[3]               The four bills of costs were filed on June 5, 2008 requesting that the taxation be done in writing. A timetable was issued for filing of supporting materials, written representations against the bill of costs and a reply. On October 10, 2008, counsel for Genencor filed four affidavits in support of their bills of costs and the amended bill of costs further to the Order of Madam Justice Hansen. As of today, no written representations have been filed. I can now proceed with the taxation of each bill of costs with the documentation on file.

 

[4]               The first bill of costs was filed further to the Order of Mr. Morneau, Prothonotary, dated July 13, 2006 allowing Novozymes A/S to be added as a party respondent. Said Order reads as follows: “Costs of the motion go to Novozymes A/S.” After reviewing the file, Genencor will not be allowed costs for this motion. As an assessment officer, I do not have the authority to allow counsel fees and disbursements for this motion. Therefore, this bill of costs will not be considered.

 

[5]               The second bill of costs was filed further to the Order of Pinard J. dated August 24, 2006 granting appellant’s motion for an Order setting aside the Order of Mr. Morneau, Prothonotary, dated July 13, 2006 with costs. Genencor is requesting counsel fees as follows: 5 units under item 5 for the preparation and filing of a contested motion, including material and responses, 2 hours x 2 units under item 6 for the hearing of the motion, and 4 units under item 26 for the assessment of costs. I have allowed items 5 and 6 as requested. However, the 4 units claimed under item 26 have been reduced to 2 units as the taxation is not contested and not complex. Counsel fees are awarded in the amount of $1,504.14 ($1,320 + $79.20 (G.S.T. 6%) + $104.94 (P.S.T. 7.5%).

 

[6]               As for disbursements in the amount of $495.06 for bailiff fees, photocopies, fax charges,  binding and on-line research, they are all allowed as claimed because they are not contested and they appear reasonable.

 

[7]               Genencor’s bill of costs pursuant to the Order of Pinard J. is assessed and allowed in the amount of $1,999.20. A certificate of assessment will be issued for this amount.

 

[8]               The third bill of costs was filed further to the Order of Madam Prothonotary Tabib dated April 11, 2007 dismissing Novozymes’ motion for an Order granting Novozymes A/S leave to intervene in this appeal, with costs to Genencor. Genencor requested counsel fees as follows: 5 units under item 5 for the preparation and filing of a contested motion, including material and responses, 6.5 hours x 2 units under item 6 for the hearing of the motion, and 4 units under item 26 for the assessment of costs. I have allowed items 5 and 6 as requested. However, the 4 units claimed under 26 have been reduced to 2 units as the taxation is not contested nor complex. I have awarded counsel fees in the amount of $2,734.80 ($2,400 + $144 (G.S.T. 6%) + $190.80 (P.S.T. 7.5%)).

 

[9]               Disbursements in the amount of $243.20 are allowed as requested for bailiff fees, copying, binding and fax charges because they are not contested and they appear reasonable.

 

[10]           The bill of costs filed further to the Order of Madam Prothonotary Tabib is assessed and allowed in the amount of $2,978.00. A certificate of assessment will be issued for this amount.

 

[11]           The fourth bill of costs was filed further to the Order of Madam Justice Hansen dated August 15, 2007 dismissing the appeal by Novozymes A/S of the Order of Madam Protonotary Tabib with costs payable by Novozymes to Genencor.

 

[12]           Genencor requested in this bill of costs counsel fees as follows: 5 units under item 5 for the preparation and filing of a contested motion, including materials and responses, 2 units x 2 hours under item 6 for the hearing of the motion, 3 units under item 24 for travel incurred by counsel to attend a motion in Ottawa, and 4 units under item 26 for the assessment of costs. I have allowed items 5 and 6 as requested. As an assessment officer does not have the authority to allow item 24 when the Court was silent on this issue when disposing of the motion in question, this claim is disallowed. The 4 units under item 26 are reduced to 2 units because the assessment of costs is not contested and not complicated. I have awarded these counsel fees: $1,504.14 ($1,320 + $79.20 (G.S.T. 6%) + $104.94 (P.S.T. 7.5%)).

 

[13]           The disbursements in the amount of $433.15 for bailiff fees, photocopying, binding and Quicklaw research are allowed because the disbursements were reasonable and necessary for the conduct of the file.

 

[14]           The bill of costs filed further to the Order of Hansen, J. is assessed and allowed in the amount of $1,937.29. A certificate of assessment will be issued for this amount.

 

 

 

 

“Diane Perrier”

Montréal, Quebec

July 27, 2009

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-262-06

 

 

STYLE OF CAUSE:                          GENENCOR INTERNATIONAL INC. v.

COMMISSIONER OF PATENTS ET AL.

                                                                                                                                                           

 

 

ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES

 

PLACE OF TAXATION:                  Montréal, Quebec

 

ASSESSMENT OF COSTS -REASONS BY

DIANE PERRIER, ASSESSMENT OFFICER

 

DATE OF REASONS:                      July 27, 2009

 

 

SOLICITORS OF RECORD:

 

Gowling Lafleur Henderson

Montréal, Quebec                                                        FOR THE APPELLANT

 

Macera & Jarzyna

Ottawa, Ontario                                                           FOR THE PROPOSED INTERVENOR

                                                                                    NOVOZYMES A/S

 

John H. Sims, Q.C.

Deputy Attorney General of Canada                             FOR THE RESPONDENTS

Montréal, Quebec