Date: 20041020
Docket: A-569-03
A-572-03
Citation: 2004 FCA 354
CORAM: LINDEN J.A.
BETWEEN:
BOSTON SCIENTIFIC LTD./BOSTON SCIENTIFIQUE LTEE
Appellant
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
AND BETWEEN:
ARTERIAL VASCULAR ENGINEERING CANADA, INC.
MEDTRONIC AVE., INC. and MEDTRONIC OF CANADA INC.
Appellants
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
Heard at Toronto, Ontario, on October 20,2004.
Judgment delivered from the Bench at Toronto, Ontario, on October 20, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20041020
Docket: A-569-03
A-572-03
Citation: 2004 FCA 354
CORAM: LINDEN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
BOSTON SCIENTIFIC LTD./BOSTON SCIENTIFIQUE LTEE
Appellant
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
AND BETWEEN:
ARTERIAL VASCULAR ENGINEERING CANADA, INC.
MEDTRONIC AVE., INC. and MEDTRONIC OF CANADA INC.
Appellants
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 20, 2004)
[1] These reasons will be filed in each of these appeals.
[2] In the Order appealed from, the Motions Judge granted a stay of the motion for summary judgment upon two bases:
1. A press release by the Government of Canada proposing legislative amendments to the Patent Act which would retroactively allow for the correction of faulty past fee payments.
2. A pending application for leave to appeal to the SCC from the Dutch Industries case which decision would directly affect the rights of the parties in this case.
[3] We are of the view that it was clearly appropriate for the Motions Judge to grant a stay based upon the pending leave application in Dutch Industries and the appeal will fail for this reason. However, we make no comment upon the other basis for the stay, except to say that it is a rare circumstance where the Court will decline to proceed because of anticipated legislative changes.
[4] This issue may be argued again before the Motions Judge when the stay order expires next month, at which time the Motions Judge will no doubt take into consideration all the relevant jurisprudence as well as the fact that with the passage of a whole year from the time the stay was granted, the anticipated legislation has not been enacted.
[5] The appeal will be dismissed with costs.
"J. E. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-569-03
A-572-03
STYLE OF CAUSE: BOSTON SCIENTIFIC LTD.
Appellant
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
AND BETWEEN:
ARTERIAL VASCULAR ENGINEERING CANADA, INC. MEDTRONIC AVE., INC. and MEDTRONIC OF CANADA INC.
Appellants
and
JOHNSON & JOHNSON INC.
and EXPANDABLE GRAFTS PARTNERSHIP
and CORDIS CORPORATION
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 20 , 2004
REASONS FOR JUDGMENT
OF THE COURT: (LINDEN, SEXTON, SHARLOW JJ.A.)
DELIVERED FROM THE
BENCH BY: SEXTON J.A.
Ronald E. Dimock FOR APPELLANT
David Reive (IMM-569-03)
Richard Neiberg FOR APPELLANTS
Jason Wadden (IMM-572-03)
Mr. Donald M. Cameron FOR RESPONDENTS
Mr. R. Scott Mackendrick (IN A-569-03 & A-572-03)
Allyson Whyte Nowak
SOLICITORS OF RECORD:
Dimock Stratton LLP FOR APPELLANT(S)
Barristers & Solicitors
Toronto, Ontario
FOR RESPONDENTS
Ogilvy Renault
Barristers & Solicitors
Toronto Ontario