Motion to amend statement of defence to add counterclaim in patent action partially granted.
The defendant in a patent infringement action under the Patented Medicines (Notice of Compliance) Regulations brought a motion to amend its statement of defence to add a counterclaim seeking declaratory relief against a patent and a related Certificate of Supplementary Protection.
The Federal Court held that the Regulations do not bar a counterclaim.
Applying the rules for pleadings amendments, the Court permitted the amendments that formalized grounds already asserted in existing pleadings but refused the late addition of new allegations concerning another medication, finding the timing strategic rather than fair.
