Date: 20110318
Docket: A-121-11
Citation: 2011 FCA
107
Present: PELLETIER J.A.
BETWEEN:
PHOSTECH
LITHIUM INC.
Appellant
and
VALENCE
TECHNOLOGY, INC.
Respondent
Heard at Ottawa, Ontario, on March 17, 2011.
Order delivered at Ottawa,
Ontario, on March 18, 2011.
REASONS
FOR ORDER BY: PELLETIER
J.A.
Date: 20110318
Docket: A-121-11
Citation: 2011 FCA 107
Present: PELLETIER
J.A.
BETWEEN:
PHOSTECH LITHIUM INC.
Appellant
and
VALENCE TECHNOLOGY, INC.
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
I
am satisfied that the test for the granting of a stay has been met.
[2]
The
question of a serious issue to be tried is a low threshold. The issue of the
construction of claim 3 is a matter of law and it appears to me that the appeal
on this point is not frivolous.
[3]
As
for irreparable harm, I am satisfied that if the stay is not granted, Phostech
Lithium Inc. (Phostech) will suffer irreparable harm in the form of the loss of
the P1 business currently carried out from its premises in St. Bruno by reason
of the loss of the key components of the business namely, key personnel, scarce
suppliers, and customers whose time requirements are time sensitive.
[4]
The
balance of convenience is in favour of Phostech. Phostech and the respondent
Valence Technology, Inc. (Valence) do not compete in the
same market so that the only inconvenience to it, if the appeal is ultimately dismissed,
is a longer period with respect to which it will be entitled to a monetary
remedy. On the other hand, Phostech’s P1 business will be lost and the
business of its customers will be affected to a greater or lesser degree.
[5]
That
said, on the current state of the law, the granting of a stay amounts to a
licence to continue infringing Valence’s patent. Valence must be
protected from any greater loss as a result of the Court’s intervention.
[6]
There
will therefore be an order in the following terms:
The execution of the judgment of Madam
Justice Gauthier, rendered on February 17, 2011 in Court file T-219-07 will be
stayed, until the hearing of this matter by this Court, such stay to be
effective as of the date when all of the following conditions have been
satisfied:
1- Phostech will
provide Valence with a written undertaking as to damages, in a form acceptable
to Valence’s
solicitors, in the event its appeal is dismissed.
2- Phostech will
provide Valence with a written undertaking, in a form acceptable to Valence’s
solicitors, that it will make no distributions to its shareholders or to
non-profit entities, and that it will not make any expenditures other than in
the normal course of its usual business activities as long as this stay is in
effect.
3- Phostech will
deposit with the registry of the Federal Court of Appeal a bond, in a form
acceptable to Valance’s solicitors, in favour, in the amount of $250,000.
4- Within 7 days
counsel for Phostech and Valence will jointly submit a
timetable with respect to the steps remaining to be taken in the appeal with a
view to having this matter heard in Montreal in the week of June 6,
2011. If the counsel are unable to agree, the Court will fix the timetable
without reference to the parties.
"J.D.
Denis Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-121-11
STYLE OF CAUSE: PHOSTECH
LITHIUM INC. v. VALENCE TECHNOLOGY, INC.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 17, 2011
REASONS FOR JUDGMENT BY: PELLETIER J.A.
DATED: March 18, 2011
APPEARANCES:
|
François Guay
Jean-Sébastien
Dupont
|
FOR
THE APPELLANT
|
|
Ronald Dimock
Angela
Furlanetto
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Smart & Biggar
Montrèal,
Quebec
|
FOR
THE APPELLANT
|
|
Dimock Stratton LLP
Toronto, Ontario
|
FOR
THE RESPONDENT
|
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