Fasken began this case with a successful motion for an interlocutory injunction to prohibit the production and sale of the infringing products until expiry of the patent. This is a rare and noteworthy outcome, one that was commented on by several other law firms. Interlocutory injunctions in patent cases are issued very rarely in Canada; perhaps once or twice per decade.
The file has progressed steadily since that time. Stelpro was compelled by motion to produce financial records to allow the evaluation of damages, and Stelpro’s attempt to suspend the Superior Court file in favour of the Federal Court (further explained below) was rejected from the bench by Justice Benoit Emery, Québec’s leading authority on civil procedure. Stelpro sought leave to appeal Justice Emery’s decision and leave was denied by the Quebec Court of Appeal.
Thermolec brought a motion to strike one of Stelpro’s expert reports. That judgment is still pending. Regardless of the outcome of that motion, the file will be ready for trial by May 2020.
Having lost the interlocutory injunction, Stelpro then attempted to open a “second front” in the litigation by filing an action to invalidate Thermolec’s patent in Federal Court.
Thermolec brought a motion to strike that proceeding, or alternatively, suspend it pending the outcome of the Superior Court litigation. Thermolec’s motion was rejected at the trial level. The Federal Court of Appeal reversed, granting Thermolec judgment from the bench under the difficult “palpable and overriding error” standard of appellate review.
The Federal Court of Appeal ruled that the trial judge had clearly erred by failing to suspend the Federal Court file, and issued an order staying the file in favour of the Superior Court. Stelpro was also ordered to pay $17,000 in costs to Thermolec.
Fasken team composed of Chris Semerjian (litigation lead in Superior Court and overall file lead), Joanie Lapalme (patent lead in Superior Court), Michael Shortt (litigation lead in Federal Court) and Patricia Hénault advised Thermolec Ltée.
