DATE: October 31, 2008 ________________________________________________________________________
BY: HONOURABLE DANIEL H. TINGLEY, J.C.S. ________________________________________________________________________
TECHNOLOGIES BIO-COGNI SAVED (BCS) INC. Applicant and BIOCOGNISAFE CANADA INC. Applicant in resumption of authority - and DAVID CARONI Applicant C. RAPHAEL HUPPÉ BRUNO FARBOS EGBERTO OF MEDEIROS EFFECTIVE COMPUTER NETWORKS LLC EFFECTIVE CONTROL TRUCKING LLC EFFECTIVE CONTROL TRANSPORTATION LLC 9116-1562 QUEBEC INC. MEDIA CITY CORPORATION LLC Defendants ________________________________________________________________________________
REASONS and JUDGEMENT (Deliveries forthwith) (On a request in order to make declare the exercise validates of a right of withdrawal by the defendants) ________________________________________________________________________________
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[1] The defendants claim that they can exert a right of withdrawal against the applicant in resumption of authority. They plead:
18. Considering that the sale of the rights, titles and interests in the litigation brought by BCS within the framework of this file is actually a sale of litigious rights, that gives right to the Defendants to be completely discharged by refunding with the Applicant in recovery from authority the price from this sale, including the expenses and the interests as from the day when the payment was made.
[2] The “rights, titles and interests in the litigation” include, it seems to me, the invention “Method and Apparatus for Generating an Indication of a Level of Vigilance of an Individual” (P-7) and all inherent rights, including the right there to protect this invention.
[3] The “litigation” seeks, inter alia, to protect the rights in the invention from certain intrigues of the defendants.
[4] It became clearly during the argumentation which the defendants do not regard the purchase of the invention itself of Syndic to the Bankruptcy of the applicant as a litigious right. Rather, they would like at this stage of the procedures, to discharge the consequences from their intrigues near the holder of the invention by a payment of 50.000 $, inspired by article 1784 C.c.Q.1
[5] The purchase of an invention includes all its incidents. The holder of an invention has the right to protect it. Nothing changed pout the defendants since the sale of the invention by the aforementioned Syndic, except that it is now the Applicant in resumption of authority which seeks to protect its interests in the invention.
[6] However, according to a constant jurisprudence since 1907, the sale of the rights, goods or credits, even litigious, of one failed by a Syndic “is not subjected to the withdrawal”.2
[7] Even if the defendants can manage to convince the court dealing with the substance of a case of the litigation which their intrigues can be purged by a payment of 50.000 $, which the Court strongly doubts, the question of the suitable amount remains to be determined according to ________________________
1 Who enacts that: 1784. When a sale of litigious rights takes place, that of which they are claimed is entirely discharged by refunding with the purchaser the price from this sale, the expenses and the interests on the price, as from the day when the payment was made. This right of withdrawal cannot be exerted when the sale is made with a creditor in payment of what is owe him or to a co-heir or joint owner of the sold right, or to the owner of the good which is the object of the right. It cannot be it, either, when the court gave a judgement maintaining the right sold or when the right was established and that the litigation is in a to be judged state. 2 See, inter alia, businesses Abran C. Perkins Electric Ltd. (1931) S.C.R. 636 ; Brossard C. Bank of the People and DeSerres, (1903) Q.R. 13 C.B.R148; Corporation of village of St-Thècle C.Matte, 27 B.R. 185 and Minco C. 9170-6929 Quebec Inc. et al., C.S.M. 500-11-026779-054; 2007-01-17.
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evidence which is not deposited yet with the file. Only the court dealing with the substance of a case can come to a conclusion about this question.
[8] In addition to, the general information of the declaration required in the conclusions of the request of the defendants is too vague. One could conclude, like the Court made initially, that the so-called right of withdrawal includes the invention itself.
[9] FOR THESE REASONS, THE COURT:
[10] REJECT the request of the defendants in order to make declare validates the exercise of a right of withdrawal.
[11] WITH COSTS. __________________________________ DANIEL H. TINGLEY, J.C.S.
Me Bernard Gravel LAPOINTE ROSENSTEIN Prosecutor of the applicant in resumption of authority
Me Jacques Renaud RENAUD EMBROIDERER Prosecutor of the defendants, Raphael Crested, Effective Networks LLC and Media City Corporation LLC
Me Michel Savonitto MERCHANT MELANÇON FORGET Prosecutor of the Defendants Bruno Farbos and Egberto de Medeiros
Out the LAN card, down the cable, through the router, out the gateway, to the ISP...nothin' but net!
AI
