Cremco Supply Ltd. v. Canada Pipe Co.
T-2265-97
Hargrave P.
17/3/98
18 pp.
Motion to strike out portions of counterclaim or, in alternative, for particulars-Plaintiff Cremco Couplings, joint venture, owner of patent reissued in 1997 for soil pipe coupling device-Defendant Canada Pipe Co. Ltd. said to produce and sell similar pipe coupling without plaintiffs' permission-Focus of motion to strike out sections 23 and 26 to 29(a) of counterclaim-Alternatively, plaintiffs seeking particulars of those paragraphs and of paragraph 30 of counterclaim-Sections 26 to 29(a) of counterclaim alleged invalidity in that defendant said invention not new, but described in earlier patents and publications, used and sold in Canada for more than two years before filing of patent-In deciding motion for particulars, important to keep in mind function of particulars-Function including particulars needed both for pleading and for trial-Particulars before pleading to inform other side of nature of case to be met and to limit issues as to which examination for discovery will be required-At pleading stage, particulars necessary to facilitate intelligent reply to statement of claim or here, reply to counterclaim-Plea such as that in paragraph 23 of counterclaim, following wording of Patent Act, s. 36(1), requiring particulars-Plaintiff having right to know, in detailed manner, particulars of prior manufacturer, including where, when, how and other circumstances of knowledge, use and manufacture-Defendant appending to defence and counterclaim list of firms, inventors, patentees who invented, manufactured, used, sold similar product-Arguing these sufficient particulars-Plaintiff entitled to know all of material facts of which defendant has knowledge, intends to rely upon in support of allegations of prior invention, manufacture, use, knowledge-Entitled to be advised as to parts of prior patents relied upon, cannot be put off with suggestion that they look at patents for themselves, which stops short of defendant's obligation to clearly advise plaintiffs as to case to be met-In context of pleading, important that particulars of prior art be set out in detail so that action may move along with minimum of wasted time and effort-While particulars for pleading not as extensive as those required for trial and should not include detailed material being properly evidence at trial, party must provide enough particulars of case to be met so that response may be intelligent pleading and scope of discovery may be kept within reasonable limits-Pleadings herein, including scheduled documents and particulars provided, not achieving basic objectives-Case law suppporting plaintiffs' request for type of particulars sought-Motion allowed-Patent Act, R.S.C. 1970, c. P-4, s. 36(1).