Connaught Laboratories Ltd. v. Smithkline Beecham Pharma Inc.
T-1290-98
Gibson J.
18/12/98
12 pp.
Appeal from Senior Prothonotary's denial of application to strike out plaintiff's statement of claim-Notice of compliance (NOC) issued to defendant (SKB) for diphtheria, tetanus, acellular pertussis vaccine on December 17, 1996-No steps taken towards marketing vaccine in Canada-On June 23, 1998 patent issued to plaintiff for invention entitled "Purification of a Pertussis outer membrane Protein"-Plaintiff alleging SKB would infringe patent if marketed vaccine in Canada-Federal Court Rules, 1998 permitting Court to strike pleading if discloses no reasonable cause of action or if otherwise abuse of Court's process-SKB submitting onus met because quia timet action based on hypothetical concerns because two years since SKB received NOC, no marketing activity in that period alleged in statement of claim, no steps taken toward marketing of vaccine alleged-Whether conditions for valid quia timet action demonstrated on face of amended statement of claim-Review of case law disclosing following allegations required on face of statement of claim initiating quia timet proceedings alleging patent infringement: statement of claim must allege deliberate, expressed intention to engage in activity, result of which would raise strong possibility of infringement; activity to be engaged in must be alleged to be imminent, and resulting damage to plaintiff must be alleged to be very substantial if not irreparable; facts pleaded must be cogent, precise, material, not indefinite, or speaking only of intention or amounting to mere speculation-Against those criteria, no facts pleaded in amended statement of claim either speaking to deliberate intention or going to imminent damage-Facts pleaded speaking to speculation based solely on facts SKB obtaining NOC for its vaccine two years ago, related to manufacturer of vaccine in Belgium, vaccine marketed in countries other than Canada-No imminent allegedly infringing action pleaded-Plaintiff failing to allege on face of amended statement of claim proper basis for quia timet action-Appeal allowed, amended statement of claim struck in its entirety without leave to amend both on ground amended statement of claim disclosing no reasonable cause of action, otherwise abuse of process of Court-Federal Court Rules, 1998, SOR/98-106, r. 221.