Patent Infringement – Pleadings – Amendment – Reasonable Cause of Action
Russell Lusk and Emily Mak for the Defendants

The Plaintiff brought this action claiming the Defendants were infringing a patent he had obtained for a device used to centre reinforcing bars in drill holes. The Defendants brought an application to dismiss the action or, alternatively, to strike out the amended Statement of Claim for failing to disclose a reasonable cause of action. The Plaintiff's action was initially brought alleging breach of contract of an exclusive distributorship agreement for the device. A consent dismissal order was later entered dismissing the action as against certain individual Defendants, and allowing the Plaintiff to amend his claim to allege patent infringement as against the corporate Defendants on certain conditions. The Plaintiff did amend his claim. However, the Defendants argued that the amendments were inadequate and further argued that allowing the Plaintiff to further amend his claim would be pointless because there was no legal foundation for his patent infringement allegations.

The court did not dismiss the claim but did order that the Plaintiff further amend his claim since his pleadings as amended were not sufficient in alleging patent infringement. In particular, the court noted that the Plaintiff had failed to plead the material facts as to how the Defendants' actions had infringed his patent, which was one of the necessary elements of a patent infringement action as set out in Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd. and subsequent cases. The Plaintiff had also included various statements of law in his Statement of Claim, which the court ordered be struck. The court further awarded costs payable to the Defendants forthwith.