Montréal, Quebec, April 19, 2007
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
Applicant
and
THE MINISTER OF HEALTH
and
GENPHARM INC.
Respondents
and
H. LUNDBECK A/S
Respondent/Patentee
REASONS FOR ORDER AND ORDER
[1] H. Lundbeck A/S (H. Lundbeck) is a pharmaceutical company focusing on the treatment of disorders of the central nervous system. Lundbeck Canada Inc. (Lundbeck Canada) is the Canadian subsidiary of H. Lundbeck, which is the owner of Canadian patent no. 1,334,452 entitled Enantiomers of Citalopram and Derivatives Thereof granted on September 9, 1997 (the ‘452 patent).
[2] With the consent of H. Lundbeck, the ‘452 patent was placed on the patent register by Health Canada. Lundbeck Canada and H. Lundbeck (collectively Lundbeck) are now seeking a protective order in this proceeding which was commenced pursuant to the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (the NOC Regulations).
[3] Genpharm Inc. (Genpharm) is a Canadian generic pharmaceutical company that is a member of the Merck Generic Group. Genpharm has filed with the Minister of Health (the Minister) an Abbreviated New Drug Submission (ANDS) for the issuance of a Notice of Compliance (NOC) for the medicinal ingredient escitalopram (oxalate) in tablet form for oral administration in each of 5 mg, 10 mg, 15 mg and 20 mg strengths (the Genpharm Products). The ANDS compares the Genpharm products with, or makes reference to, the drug CIPRALEX® for which NOCs have been issued to Lundbeck Canada. The Notice of Allegation and Detailed Statement (NOA) served by Genpharm alleges that the ‘452 patent is invalid.
[4] In the United Kingdom, Generics UK Ltd. (Generics UK) instituted proceedings against H. Lundbeck to have the patent corresponding to the ‘452 patent declared invalid. In Australia, Alphapharm PTY Ltd. (Alphapharm), also owned by the Merck Generics Group, instituted proceedings against H. Lundbeck and Lundbeck Australia PTY Ltd. to have the patent corresponding to the ‘452 patent declared invalid. Confidentiality agreements have been executed by the parties involved in the UK and Australian proceedings.
[5] The general principle that the courts and their process should be open to public scrutiny, including the principle of public access to court documents, is fundamental to our system of justice. Accordingly, a protective order should only be granted when it is necessary to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation, because reasonable alternative measures will not prevent the risk: Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522 at para. 53.
[6] Protective orders are commonly requested, and granted, in proceedings under the NOC Regulations. In endorsing the principle that confidential orders can issue in proceedings under the NOC Regulations and in crafting their terms on an ad hoc basis so as to restrict their application to what is strictly necessary in any given case, this Court has attempted to strike a balance between the need for public scrutiny of the court process and the interests of justice between the parties, including the bona fide proprietary and commercial interests of the parties (see: AB Hassle v. Canada (Minister of National Health and Welfare) (2000), 5 C.P.R. (4th) 149 at para. 6 (F.C.A.) (AB Hassle)).
[7] It is a sufficient demonstration of the need for a confidentiality order if the moving party believes that its proprietary, commercial and scientific interests would be seriously harmed (Apotex Inc. v. Wellcome Foundation Ltd. (1993), 51 C.P.R. (3d) 305 at 311 (F.C.T.D.) (Wellcome Foundation)). Protective orders are often granted on consent. As Justice Roger Hughes stated in Merck & Co. v. Brantford Chemicals Inc. (2005), 43 C.P.R. (4th) 233 (F.C.), at paragraph 8, “[i]t is only when the parties disagree that this Court is asked to provide its view as to an appropriate form of order”.
[8] In its NOA, Genpharm agreed that were a proceeding to be commenced in response to the NOA, it would produce the relevant portions of its ANDS subject to the terms and conditions of an appropriate confidentiality agreement, an issue which is not contentious in the present proceeding. Lundbeck also expects to file documents already disclosed during the course of the UK and/or Australian proceedings, as well as documents and information which have not been disclosed. Based on the present evidentiary record, I am satisfied that these various documents include scientific information that is confidential and proprietary, as well as commercial and financial information that need to be protected from public disclosure.
[9] The only contentious issue is to whom the information described by Lundbeck as being confidential ought to be divulged for the purposes of the present proceeding.
[10] First, with respect to the filing of documents already disclosed during the course of the UK and/or Australian proceedings, Lundbeck simply requests that those documents be afforded the same protection as that given to them in the UK and/or Australia. This is certainly a valid consideration for the issuance of a protective order, which does not need to be perfectly reciprocal as between the parties in every respect (Rivard Instruments Inc. v. Ideal Instruments, 2006 FC 1338 at para. 51 (Rivard Instruments)). Pursuant to the terms of the Lundbeck draft order, such confidential information may nevertheless be divulged to a number of “designated persons”, which include Genpharm, the outside counsel for Genpharm, namely Osler Hoskin & Harcourt LLP (Osler), litigation contractors retained by Osler, up to seven individuals retained as outside experts by Genpharm, three employees of Generics, namely Howard Rosenberg, Paul Jenkins, and Shazia Khan, and outside counsel for Generics, namely the UK law firm of Taylor Wessing (Taylor).
[11] Second, the Lundbeck draft order creates a category of “restricted confidential information” that includes all information that has not been disclosed in parallel proceedings in other jurisdictions. Lundbeck proposes that such information only be divulged to the “designated persons” mentioned above, but which will exclude Genpharm, Generics and Taylor.
[12] According to the evidence on record, Peter Eustace, Senior Patent Officer of Genpharm, has primary responsibility for instructing Osler in this proceeding. Peter Eustace in turn reports to, and receives instructions from, Howard Rosenberg, an employee of Generics, and Group IP and API Strategy Director for the Merck Generics Group as a whole. Mr. Rosenberg has overall responsibility for managing the intellectual property litigation of Merck Generics Group, including this proceeding. Paul Jenkins, Group Manager – Patent and IP Strategy, and Shazia Khan, Patent Officer, are also employees of Generics, and work with Mr. Rosenberg on various proceedings involving members of the Merck Generics Group, including proceedings involving escitalopram.
[13] Genpharm takes issue with the above category of “restricted confidential information”. It submits that Genpharm, Generics and Taylor should be allowed to instruct Osler in this proceeding. Moreover, employees of Generics should have access to confidential information, provided that proper undertakings to utilize the confidential information solely for the purpose of the present litigation are executed by the concerned individuals. Counsel submits that Genpharm, Generics and Taylor are sophisticated parties, accustomed to dealing with confidential information. Moreover, any such information should not be limited to the three employees of Generics designated in the draft Lundbeck order.
[14] “Counsel’s eyes only” protective orders are not uncommon, but they are not granted by this Court in the exercise of its discretion as a matter of convenience. It has been stated in a number of decisions that such an order should only be granted in “unusual circumstances” (see Merck & Co. v. Apotex Inc. (2004), 32 C.P.R. 203 (F.C.) at para 8; Pfizer Canada Inc. v. Novopharm Ltd. (1996), 70 C.P.R. (3d) 176 at 179 (F.C.T.D.) (Pfizer); Zeneca Pharma Inc. v. Minister of National Health and Welfare (1994), 55 C.P.R. (3d) 1 at 6 (F.C.T.D.), Merck & Co. v. Brantford Chemicals Inc. (2005), 43 C.P.R. (4th) 233 (F.C.); Pharmascience Inc. v. Glaxosmithkline Inc., 2007 FC 360 at para. 5 (Pharmascience)). There is no definition as to what constitutes “unusual circumstances”. Each case turns on its own merits, bearing in mind that protective orders are in nature interlocutory and can be varied by the Court.
[15] In Wellcome Foundation, above, at page 311, Justice Andrew MacKay took into account three considerations: the existence of a similar order granted upon consent in parallel litigation elsewhere; the possibility for a party to object to a designation of confidentiality and the Court’s power to control the “declassification” process; and a party’s belief that its commercial business or scientific interest associated with trade secrets might be seriously harmed by disclosure. These considerations were also applied in other decisions of this Court also dealing with requests for “counsel’s eyes only” provisions (see Pfizer, above, at 180-181; Merck & Co. v. Apotex Inc. (2004), 32 C.P.R. (4th) 203 at paras. 8-10).
[16] However, Justice MacKay did not purport to set out a series of criteria to be examined and followed in every instance (Pharmascience, above, at para. 5) and the Court may see fit to consider and apply other relevant factors in addition or in substitution to the considerations mentioned in the Wellcome Foundation case. Indeed, where the parties themselves are competitors, preventing disclosure to the opposing party is a perfectly legitimate purpose of a protective order, particularly where the evidence shows that the disclosure to the opposing party could injure the interests of the other party (Rivard Instruments, above, at para. 40). That being said, these considerations apply in this case which also involves the particular or special features addressed below.
[17] First, I note that the confidentiality agreement executed in relation to the UK proceeding does not contain “counsel’s eyes” provisions. However, the confidentiality agreement executed in relation to the Australian proceeding was subsequently modified by the Australian Court to include one lawyer of Alphapharm, giving him access only to certain particular documents. That being said, I doubt the impugned provisions of the Lundbeck draft order qualify as “counsel’s eyes only” since outside experts are not excluded. In any event, based on the evidence on record, I find that Lundbeck has met the initial burden of proving that a protective order containing “counsel’s eyes only” provisions in the case of undisclosed “restricted confidential information”, should issue.
[18] Second, the Lundbeck draft order ensures that the sensitive confidential information of the parties will not be disclosed or made use of for any other purpose than this application, and at this stage, based on the present evidence, I am satisfied that Genpharm, who is represented by outside counsel, namely Osler, will be able to prepare its case, further considering that the Lundbeck draft order provides that up to seven individuals not employed by Genpharm may be retained as outside experts. The bald assertion that Osler will need to send or to show the “restricted confidential information” to Genpharm, Generics and/or Taylor in order to get instructions is not persuasive.
[19] Third, I am satisfied that the disclosure of the “confidential information” and “restricted confidential information” would create potential harm if divulged to persons other than the “designated persons” in the Lundbeck draft order. I accept that such confidential information is valuable to any competitor seeking to fine-tune a process for the production of escitalopram. Such competitor may gain a competitive advantage in knowing the sales and marketing strategy of Lundbeck. If disclosure of these undisclosed documents to Genpharm, Genpharm and/or Taylor were permitted, valuable commercial information helpful to these companies would come to be known by their employees who may unwittingly and unintentionally misuse that information at some future time in a fashion undetectable by Lundbeck and in respect or which there could be no adequate remedy.
[20] Fourth, the parties themselves may challenge the true confidentiality of specific documents by the very terms of the Lundbeck draft order and this Court will always be prepared to hear challenge by a third party, such as Generics, whether or not the terms of the order so provide (AB Hassle, above, at para. 7).
[21] Fifth, Generics is not a party to this proceeding, and Taylor is not counsel on record of Genpharm. While the terms of the proposed undertakings appear to have worldwide application, it is difficult to determine to what extent this Court can ensure that they are complied with and enforced outside Canada (Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52). It must be remembered that the failure to respect an order of this Court may lead to contempt proceedings. When a person is found guilty of contempt, imprisonment may be ordered by this Court. The difficulties with respect to the actual enforcement of the protective order outside Canada forces this Court to be very prudent at this point in time.
[22] Sixth, nothing prevents Genpharm or any interested party from seeking in the future, in the case of certain identifiable confidential documents, more permissible conditions of disclosure on the basis of specific allegations supported by proper evidentiary material and reasonably enforceable conditions outside Canada, as the case may be.
[23] In conclusion, having read the parties’ respective draft orders and considered the evidence on record, as well as all relevant factors, I have decided to allow the present motion and issue a protective order in the form set out in the Lundbeck draft order (tab 2 of the motion record filed on behalf of Lundbeck). Costs associated with the present motion shall be in the cause.
ORDER
THE COURT ORDERS that:
- The motion is allowed and a protective order in the form set out in the Lundbeck draft order, which is annexed as Schedule A, shall issue.
- Costs associated with the present motion shall be in the cause.
“Luc Martineau”
Judge
Ottawa, Ontario
April 19, 2007
SCHEDULE A
No. T-372-07
FEDERAL COURT
LUNDBECK CANADA INC.
Applicant
-AND-
THE MINISTER OF HEALTH
-and-
GENPHARM INC.
Respondents
-AND-
H. LUNDBECK A/S
Respondent / Patentee
PROTECTIVE ORDER
WHEREAS documents, information and things may be sought, produced or exhibited by and among the parties to this action, which materials relate to trade secrets or other confidential research, development, commercial or financial information.
WHEREAS it is in the interest of facilitating the just, speedy and inexpensive determination of this action to protect the legitimate interests of the parties in maintaining the confidentiality of certain confidential or proprietary information that may be disclosed.
IT IS HEREBY ORDERED THAT:
1. In this Protective Order (the “Order”), the Applicant, the Respondents and the Respondent/Patentee are referred to in the singular as a “Party” and collectively as the “Parties”.
2. “Confidential Information” shall mean any document, thing, evidence, or other form of information stored in any form of media (including computers) designated by either Party as confidential in accordance with the procedure described herein and may include any documents, things, information or evidence produced or disclosed, as the case may be, on any Examination, motion, hearing, or pursuant to any provision of the Federal Court Rules.
3. “Confidential Information” means information of a non-public and confidential or proprietary nature, whether personal or business related, relating to the subject matter:
3.1 Information of Genpharm Inc. (“Genpharm”) and its affiliated or related companies, or of Genpharm’s raw material supplier, relating to the supply, manufacture, formulation or use of Genpharm’s escitalopram tablets or any raw material used therein, which information is reflective of the product that Genpharm intends to sell if a Notice of Compliance is issued with respect to the submission referred to in its letter to Lundbeck Canada Inc. dated January 23, 2007, or information relating to confidential scientific data pertaining to the subject matter of this proceeding;
3.2 Information of H. Lundbeck A/S (“H. Lundbeck”), Lundbeck Canada Inc. (“Lundbeck Canada”) and their affiliated or related companies which was disclosed to outside counsel for Generics (UK) Ltd. (“Generics”), namely Taylor Wessing, and to three employees of Generics, namely Howard Rosenberg, Paul Jenkins and Shazia Khan under cover of confidentiality agreements, during the course of proceedings in the UK in Court file no. HC 05 CO 3689. This information is comprised principally of the internal documents of H. Lundbeck’s chemistry department which refer to or relate to the development of escitalopram, of the documents containing financial and commercial information pertaining to the efforts and investments made with respect to escitalopram and to the commercial success of that product.
4. “Restricted Confidential Information” means information of a non-public and confidential or proprietary nature, whether personal or business related, which has not been disclosed to the individuals mentioned above during the course of the same UK proceedings or otherwise, and include:
4.1 Internal documents of Lundbeck Canada and H. Lundbeck which refer to or relate to the development of escitalopram.
4.2 Financial and commercial information of Lundbeck Canada, H. Lundbeck and their related companies pertaining to the efforts and investments made with respect to escitalopram as well as to the commercial success of that product.
4.3 The new drug submission of Lundbeck Canada and all documents and correspondence relating thereto.
5. Confidential Information and Restricted Confidential Information shall not include:
5.1 Information which was lawfully and without legal restriction in the possession of an individual or Party other than through disclosure in this proceeding pursuant to this Order;
5.2 Information derived independently of disclosure in this proceeding;
5.3 Information which any individual or Party or its counsel lawfully and without legal restriction obtained from a person having the right to disclose such information; or
5.4 Information which is or becomes part of the public domain not as a result of any unauthorized act, or omission, on the part of a recipient of Confidential Information or Restricted Confidential Information pursuant to this Order.
6. In the case of Confidential Information, the “Designated Persons” are the following:
6.1 The Court, Court personnel, stenographic and video reporters engaged in the within proceeding;
6.2 Individuals employed by the Applicant, Lundbeck Canada Inc., and by the Respondent/Patentee, H. Lundbeck A/S, and Lundbeck’s related companies who need to receive the designated Confidential Information for the purpose of this proceeding;
6.3 Individuals employed by the Respondent Genpharm Inc. who need to receive the Confidential Information for the purpose of this proceeding;
6.4 Three employees of Generics, namely Howard Rosenberg, Paul Jenkins and Shazia Khan;
6.5 Up to seven (7) individuals not employed by any Party and who may be retained by the Applicant and Respondent / Patentee as outside experts;
6.6 Up to seven (7) individuals not employed by any Party and who may be retained by each of Genpharm and the Minister of Health as outside experts;
6.7 Outside counsel for the Respondent, Genpharm, namely Osler, Hoskin & Harcourt LLP, and the respective employees of Osler, Hoskin & Harcourt LLP who need to receive the designated Confidential Information for the purpose of this proceeding;
6.8 Outside counsel for Generics (UK) Ltd., namely Taylor Wessing, and the respective employees of Taylor Wessing who need to receive the Confidential Information for the purpose of this proceeding;
6.9 Outside counsel for the Applicant and Respondent/Patentee, namely Fasken Martineau DuMoulin LLP, and Goudreau Gage Dubuc, and the respective employees of Fasken Martineau DuMoulin LLP and Goudreau Gage Dubuc who need to receive the designated Confidential Information for the purpose of this proceeding;
6.10 The Minister of Health and its counsel, the Department of Justice and their respective employees;
6.11 Litigation service contractors retained by Osler, Hoskin & Harcourt LLP, Fasken Martineau DuMoulin LLP or Goudreau Gage Dubuc (such as copy services or third parties to assist with the management of documents relating to this proceeding); and
6.12 Such other persons as the Parties may agree to in writing or as the Court may order.
7. In the case of Restricted Confidential Information, the “Designated Persons” shall not include Genpharm, Generics or Taylor Wessing.
8. “Document” refers to a document as defined in Rule 222(1) of the Federal Courts Rule.
9. “Examination” refers to an examination as defined in Rule 87 of the Federal Courts Rule.
10. “Legend” refers to the following marking or label:
“CONFIDENTIAL INFORMATION OF [Party] or RESTRICTED CONFIDENTIAL INFORMATION OF [Party]: Subject to Protective Order dated _______ in Court File No. T-372-07”.
11. This Order shall apply to any confidential information produced or disclosed by or on behalf of either Party in relation to this proceeding which is designated by that Party as Confidential Information or Restricted Confidential Information in accordance with the procedure described herein.
12. A Party, who reasonably believes it will be disclosing or has disclosed confidential information, shall have the right, through its counsel, to designate such information as “Confidential Information” or “Restricted Confidential Information” pursuant to this Order in which event such information shall thereafter be governed by the terms of this Order, subject to the right of the non-producing Party to challenge the designation (hereinafter “Challenged Information”).
13. A designation of Confidential Information or Restricted Confidential Information shall be made in good faith by the designating Party. The inadvertent failure to make the designation before disclosure does not constitute a waiver of the right to make the designation. A producing Party may designate Confidential Information or Restricted Confidential Information after disclosure has been made.
14. All documents, exhibits and things that are designated as Confidential Information or Restricted Confidential Information shall be marked on each page or prominent visible surface with the Legend.
15. Any Confidential Information or Restricted Confidential Information that is submitted to this Court in this proceeding for any reason, either voluntarily or pursuant to an Order, shall be segregated from other information and documentation being submitted and shall be submitted to the Court in sealed envelopes identifying this proceeding and prominently marked with the following:
CONFIDENTIAL INFORMATION (or RESTRICTED CONFIDENTIAL INFORMATION)
Pursuant to the Court Order herein, this envelope shall remain sealed in the Court files and shall not be opened except in accordance with the terms of said order or upon order of the Court and all such sealed envelopes shall not be opened except by the Court and its staff.
16. At any examination, cross-examination or other proceeding before a Court Reporter in this proceeding, where evidence is given or documents are produced which are designated by a Party to be Confidential Information or Restricted Confidential Information, the reporter shall omit such evidence and documents from the transcript and transcribe them separately as a “Confidential Transcript” which shall be placed by the reporter in a sealed envelope marked as described in paragraph 10 above. The reporter shall in the normal course send copies of the “Confidential Transcript” to counsel for all Parties in this proceeding, and such copies shall thereafter be treated as Confidential Information or Restricted Confidential Information subject to this Order.
17. All Confidential Information or Restricted Confidential Information shall be kept confidential in the custody of outside counsel for the Parties and shall not be disclosed by outside counsel for the Parties to anyone except in accordance with the terms of this Order.
18. With respect to Examinations, only Designated Persons shall be permitted to attend that portion of any Examination which relates to or involves Confidential Information or Restricted Confidential Information.
19. Subject to the terms of this Order, and unless this Court orders otherwise, or the Party disclosing Confidential Information or Restricted Confidential Information provides its consent in writing:
19.1 Access to, disclosure of, and discussions concerning Confidential Information or Restricted Confidential Information shall be limited only to the Designated Persons;
19.2 Designated Persons shall not disclose or use Confidential Information or Restricted Confidential Information except in accordance with this Order; and
19.3 Confidential Information or Restricted Confidential Information shall be used solely for the purpose of the within proceeding and may not be used for any purpose whatsoever other than for the purpose of the within proceeding, except with leave of the Court.
20. Prior to the disclosure of Confidential Information or Restricted Confidential Information to the persons referred to in paragraphs 6.4, 6.5, 6.6, 6.8, 6.11 and 6.12 hereof, counsel responsible for making such disclosure shall furnish the intended recipient with a copy of this Protective Order and shall obtain from the intended recipient an acknowledgement in writing that the intended recipient has read this Protective Order, understands it, agrees to be bound by it and expressly consents to the jurisdiction of the Court in connection with any proceeding or hearing relating to the Confidential Information or Restricted Confidential Information and the terms of this Protective Order. Counsel shall retain a copy of the written acknowledgement, but need not provide a copy of it to other counsel except upon order of the Court.
UNDERTAKING
I, _______________, hereby acknowledge that I am about to receive from _________ Confidential Information (or Restricted Confidential Information) as defined in the Protective Order of ______________ (“Confidential Information” or “Restricted Confidential Information”).
I certify my understanding that this Confidential Information (or Restricted Confidential Information) is being produced to me pursuant to the terms and restrictions of the Protective Order of __________ in the above-captioned matter (“Order”), and that I have been given a copy of and have read and understood my obligations under that Order. I hereby agree to be bound by the terms of the Order. I agree to utilize the Confidential Information (or Restricted Confidential Information) solely for the purposes of this litigation. I clearly understand that the Confidential Information (or Restricted Confidential Information) and my copies or notes relating thereto shall not be disclosed to or discussed with anyone not similarly bound by the Order.
On request of counsel for the party who provided me with the confidential materials, I will return to said counsel or destroy, all materials containing Confidential Information (or Restricted Confidential Information), copies thereof and notes that I have prepared relating thereto.
I hereby submit to the jurisdiction of the Federal Court of Canada for the purpose of enforcement of the Order and waive any and all objections to jurisdiction and venue.
Signature
21. Where one of the Parties is in receipt of Confidential Information or Restricted Confidential Information and seeks to tender to the Court or to the other Party a document or other thing containing or commenting upon or in any way referring to the Confidential Information or Restricted Confidential Information, that Party shall designate the portion of the document or other thing as confidential and shall treat same as containing Confidential Information or Restricted Confidential Information in accordance with the terms of this Order.
22. Upon termination of this proceeding and all appeals related to this proceeding (or upon expiry of the time for commencing an appeal, or seeking leave to appeal), all copies of Confidential Information or Restricted Confidential Information in the possession of the non-producing Party shall, upon request, be destroyed within 60 days, except for one copy maintained by outside counsel.
23. Nothing in this Order shall:
23.1 Affect any implied undertaking;
23.2 In any way restrict the use of Confidential Information or Restricted Confidential Information by the Party disclosing this information or its solicitors;
23.3 Limit any of the Parties from asserting that any information designated confidential pursuant to this Order is in fact not confidential;
23.4 Foreclose or limit a Party from seeking an adjudication of the confidential character of any Challenged Information;
23.5 Foreclose or limit a Party from opposing the production of any documents or the answering of any questions on any proper grounds whatsoever (including relevance and privilege); or
23.6 Restrict in any way the use or disclosure of Confidential Information or Restricted Confidential Information by the Party of its own information, including a Party’s use of Confidential Transcripts of examinations of that Party’s own witness.
24. Any Party may waive in writing all or any part of its right over its Confidential Information or Restricted Confidential Information under this Order.
25. Any Party shall also have the right to apply to the Court for any modification or variation of the restrictions on disclosure imposed by any term of this Order as applied to any specific item or items of Confidential Information or Restricted Confidential Information.
26. The termination of this proceeding, and all appeals related to this proceeding, shall not relieve any person to whom Confidential Information or Restricted Confidential Information was disclosed pursuant to this Order from the obligation of maintaining the confidentiality of such information in accordance with the provisions of this Order. The provisions of this Order shall continue after the final disposition of these proceedings and this Court shall retain jurisdiction to deal with any issues relating to this Order, including, without limitation, its enforcement.
27. The terms and conditions of the use of Confidential Information or Restricted Confidential Information and the maintenance of the confidentiality thereof during any hearing of this proceeding shall be matters in the discretion of the Court seized of this matter.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-372-07
STYLE OF CAUSE: LUNDBECK CANADA INC., Applicant
and
THE MINISTER OF HEALTH and
GENPHARM INC., Respondents
and
H. LUNDBECK A/S, Respondent/Patentee
PLACE OF HEARING: Montreal, Québec
DATE OF HEARING: April 2, 2007
REASONS FOR ORDER: MARTINEAU J.
APPEARANCES:
|
Mr. Hilal El Ayoubi
|
FOR THE APPLICANT |
|
Mr. J. Bradley White Mr. Joseph Marin
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
Fasken Martineau DuMoulin LLP Montreal, Québec
|
FOR THE APPLICANTS |
|
Osler, Hoskin & Harcourt LLP Toronto, Ontario
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT
FOR THE RESPONDENT |