PATENTS |
Carbo Ceramics Inc. v. China Ceramic Proppant Ltd.
A-401-04
2004 FCA 283, Létourneau J.A.
2/9/04
6 pp.
Appeal from motions Judge's decision to grant interlocutory injunction--Motions Judge finding appellant entering market near end of life of patent thus raising issue of "springboarding", whereby patent holder losing part of market share due to breach of patent in anticipation of patent expiry-- After finding neutral balance of convenience, motions Judge holding status quo prior to entry of appellant into market should be preferred--Judge came to correct conclusion regarding balance of convenience, although reasons requiring clarification--According to cases, status quo, where balance of convenience neutral, is status quo at time application made or heard--Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (C.A.) recognizing factors may tip in party's favour otherwise apparently neutral balance of convenience--One such factor "springboarding"--Sufficient evidence to support serious allegation of "springboarding" herein--Fixing status quo at time when injunction sought would allow appellant not only to continue alleged infringements, but also to carry on alleged "springboarding" with Court's blessing--Motions Judge also found appellant would be unable to financially honour award of damages-- These factors along with strength of evidence in favour of respondent, strength of respondent's case, strengths of respondent's undertaking with respect to payment of damages, time at which appellant entered market, tipping balance of convenience in favour of respondent-- Parties agreeing Judge should not have granted interlocutory injunction until end of trial since, in all likelihood, patent will expire before trial completed--Appeal allowed to limited extent of amending Judge's order so that interlocutory injunction will expire on date patent expires.