CAE Machinery Ltd. v. Valon Kone Brunette Ltd.
T-1658-98
Hargrave P.
25/8/99
15 pp.
Motion to strike out paras. 9, 23 of amended defence, counterclaim, seeking particulars of paras. 13, 14, 16(b), 16(c), extension of time within which to file reply, defence to counterclaim-Plaintiff claiming, as exclusive Canadian licensee of patented drum-type log debarker, for infringement related to device manufactured by, for defendant Realsearch Inc., marketed by defendant Valon Kone Brunette Ltd.-Test for striking out pleading under r. 221 not easy one to meet, for it must be plainly, obviously, beyond doubt pleading stands no chance of success, futil-Plaintiff submitting ownership of valid patent by Realsearch irrelevant in testing for infringement-Not clearly plain, obvious, beyond doubt para. 9 of amended defence discloses no reasonable defence, immaterial, may delay fair trial of action-Para. 9 shall remain-Para. 23 of counterclaim setting out defendants have suffered damages as result of wrongful acts of plaintiff as pleaded in statement of defence-Plaintiff pointing out Federal Court has no jurisdiction to entertain claims for damages for torts of conspiracy, acquiescence-Para. 23 of counterclaim neither clearly, obviously beyond jurisdiction of Federal Court nor futile pleading which ought to be struck out as being prejudicial, delaying or otherwise abuse of Court-Para. 23 of counterclaim shall remain-In para. 13 of defence, defendants submitting certain portions of plaintiff's patent invalid by reason of Patent Act, s. 27(1), i.e. machine not novel, but in use before plaintiff filed patent application-Plaintiff entitled to particulars of paras. 13(a), (d) as to prior use, disclosure-No reason for further particulars of para. 13(b)-In para. 14 of defence, defendants said invention was obvious, being modification of prior art described in para. 13 of defence-Plaintiff mixing two concepts-First concept obviousness, second concept prior public use, sale-No need for further particulars of para. 14 for purpose of pleading-Para. 16(b) of defence setting out certain claims of patent invalid because claims broader than alleged invention made by inventor, not supported by disclosure-Were affidavit of defendant Realsearch' witness to be pleading, information set out in para. 9 would be satisfactory response to request for particulars-Affidavit not pleading-Defendants shall provide further particulars of para. 16(b) of defence-As to para. 16(b) of defence, plaintiff knew enough of case as to utility that particulars not required for pleadings-Following provision of particulars of overreaching of specifications by claims, as alleged in para. 16(b) of defence, plaintiff shall have reasonable time within which to file reply, defence to counterclaim-Federal Court Rules, 1998, SOR/98-106, r. 221-Patent Act, R.S.C., 1985, c. P-4, s. 27(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 33, s. 8; S.C. 1993, c. 15, s. 31; c. 44, s. 192).