Visx Inc. v. Nidek Co.
T-195-94
Rothstein J.
27/9/94
3 pp.
Appeal from order striking portions of statement of defence -- Action for infringement of patents relating to excimer lasers used for eye surgery -- Defendants alleging plaintiff's actions in attempting to extract inappropriate fees and in contravening Competition Act, disentitling plaintiff to equitable relief i.e. injunction, accounting of profits, although may be entitled to damages if successful-Relying on Eli Lilly and Co. et al v. Marzone Chemicals Ltd. (1976), 29 C.P.R. (2d) 253 (F.C.T.D.) in which Addy J. stating breach of Combines Investigation Act valid reason to refuse injunctive relief, although allegations might well not constitute defence at law[cad 211]That dicta refined in Proctor & Gamble Co. v. Kimberly-Clark of Canada Ltd. (1990), 29 C.P.R. (3d) 545 (F.C.A.) in which Hugessen J.A. stating past conduct, relevant to refusal of equitable relief under "clean hands" doctrine, must relate directly to subject-matter of plaintiffs' claim -- Not just any alleged inappropriate conduct relevant to consideration of whether to grant equitable relief -- Even if plaintiff acting inappropriately, such actions not relating directly to plaintiff's patent or whether defendants infringing patent -- Appeal dismissed -- Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), ss. 32(a) to (e) (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 18), 79(1) (as enacted by R.S.C., 1985 (2nd Supp.), c. 19, s. 45).