Date : 19990121
Docket : T-2565-96
BETWEEN:
DUPONT CANADA INC.,
Plaintiff
- and -
GLOPAK INC.,
Defendant
REASONS FOR ORDER AND ORDER
[Delivered from the Bench at Ottawa, Ontario
on Thursday, January 21, 1999]
McGILLIS J.
[1] The plaintiff has brought a motion to amend the Statement of Claim in this patent infringement action by defining the term "GLOPAK film" to include the GI-911 film.
[2] The plaintiff filed the Statement of Claim on November 21, 1996, alleging the infringement of Canadian patent No. 1,205,052 ("Storms patent") relating to pouches containing milk or other liquid or flowable material made from GLOPAK film. The defendant filed the Statement of Defence and Counterclaim on May 1, 1997.
[3] On May 21, 1997, the defendant moved for summary judgment seeking a declaration that its GI-911 film did not infringe the Storms patent. The parties adduced extensive evidence on the motion for summary judgment.
[4] On April 23, 1998, Muldoon J. dismissed the motion for summary judgment on the technical basis that the GI-911 film was not an issue in the action in that its manufacture began at a time subsequent to the filing of the Statement of Claim. Despite his decision on that point, Muldoon J. nevertheless carefully and thoroughly analysed the question of whether the GI-911 film infringed the Storms patent. In a lengthy judgment, he concluded that the GI-911 film did not infringe the Storms patent on the basis that its density did not fall within the range specified in the patent. Accordingly, he determined the substantive issue in favour of the defendant, but nevertheless dismissed its motion for summary judgment on the technical basis previously indicated.
[5] On January 21, 1999, the plaintiff moved to amend the Statement of Claim to include the GI-911 film in its allegation of infringement.
[6] Having considered the able submissions of counsel for the parties, I have concluded that the amendments to the Statement of Claim proposed by the plaintiff ought not to be allowed on the basis that they do not raise a triable issue. In that regard, I note that the detailed analysis of Muldoon J. on the question of whether the GI-911 film infringes the Storms patent amply demonstrates that the proposed amendments do not raise a triable issue. In the circumstances, I have concluded that it would not be in the interests of justice to permit the same issue to be relitigated, undoubtedly requiring another judge to entertain a virtually identical motion for summary judgment.
[7] For these reasons, the motion to amend the Statement of Claim is dismissed. Costs of the motion in the amount of $1500.00 are awarded to the defendant in any event of the cause.
| D. McGillis |
| Judge |
OTTAWA
January 21, 1999