GAC International, LLC v. Orthoarm Inc., 2019 ONSC 289
Read full decision. Summary prepared by Alan Macek:
Orthoarm argues that from 2009 to 2014, it relied on GAC’s conduct in paying the 10% royalty, to its detriment. If it had known that GAC was taking the position that the royalty amount was reduced to 5% it would have licensed the 715 Patent to another entity. Orthoarm brings this motion for summary judgment on the basis that GAC is estopped by its conduct from proceeding with the action. ... On January 29, 2014, GAC commenced this action seeking a declaration that it had overpaid royalties under the GAC Agreement and that royalties should be calculated at 5% of net sales from the date American began selling products covered by the 715 Patent. ... GAC states that it did not know the Empower bracket was covered by the 715 Patent until the date of Dr. Voudouris’ discovery on December 12, 2012. ... In the circumstances, I find that Orthoarm has not met the evidentiary burden of establishing that there is no genuine issue of material fact requiring a trial. There are factual issues in dispute some of which involve credibility, which prevent the court from concluding that a just and fair result could be achieved on a motion.