In Elbit Systems Electro-optics Elop Ltd. v. Selex ES
Ltd., 2016 FC 1000, the Federal Court allowed part of a motion
to strike portions of a statement of claim in an action for patent
The Defendant, Selex ES Ltd, is a
subcontractor to General Dynamics Mission Systems, the prime
contractor on an upgrade contract for installing DIRCIM systems on
Canada's fleet of Lockheed CP140 Aurora aircraft. The Plaintiff
alleged that the systems to be supplied, delivered and installed by
the Defendant would infringe the Plaintiff's patent, but did
not name either General Dynamics or the Canadian Government as
First, the Defendant moved to
strike paragraphs relating to the allegation of "inducement to
induce infringement" on the bases that this is not a
recognized cause of action and, in any event, the Plaintiff had not
pleaded material facts capable of supporting the allegation. The
Defendant argued that the test for inducement, set out in Weatherford v. Corlac requires
direct influence on a direct infringer who completes the act of
infringement such that it cannot apply to indirect inducement (i.e.
influencing a person who then influences a direct infringer):
[...] A determination of inducement
requires the application of a three-prong test. First, the act of
infringement must have been completed by the direct infringer.
Second, the completion of the acts of infringement must be
influenced by the acts of the alleged inducer to the point that,
without the influence, direct infringement would not take place.
Third, the influence must knowingly be exercised by the inducer,
that is, the inducer knows that this influence will result in the
completion of the act of infringement. [...]
Prothonotary Tabib disagreed and
held that Weatherford does not preclude indirect
inducement because (a) the case did not address such an allegation,
and (b) since inducement is itself an act of infringement,
the "act of infringement" referred to in
Weatherford could be read as including a previously
established infringement by inducement. The Court further held that
it was not satisfied that there were no grounds to find inducement,
and the pleading should not be struck.
The Defendant also argued that
certain paragraphs should be struck as they were merely bald
assertions or speculation. The first such statement was that
"[i]t is also customary and ordinary practice in the defence
industry that contracts (...) contain [indemnity clauses]."
The Court held that the existence of an industry practice is an
allegation of fact which, in this case, was relevant to the
allegation that the Defendants did in fact provide an indemnity.
The second impugned statement was that "at all material times,
[the Defendant] has been aware of the '754 Patent". The
Court found that this ought to be particularized pursuant to Rule
181, however, declined to exercise its discretion to strike because
the use of partial motions to strike should not be encouraged where
the defect is amenable to being cured by an informal request for
Finally, the Defendants sought to
strike paragraphs referring to a different procurement process from
a foreign military which the Canadian Government allegedly
considered against General
Dynamics' allegedly infringing bid. The Court found
that the parallel process was not in any way material to the cause
of action alleged against the Defendant. While Courts are generally
reluctant to strike paragraphs that are mere "surplus",
the impugned paragraphs were not facts to which the Plaintiff was
privy and the Court rejected the Plaintiff's argument that it
might shed light on inducement allegations as it would help
understand why the government preferred General Dynamics' bid
to that from foreign military, characterizing the latter as pure
speculation. The Court held that the Defendant should not be put
through onerous task of dealing with allegations and the associated
discovery when the statements were plainly irrelevant and
immaterial, and struck the impugned paragraphs from the
Materials from a recent "refresher training" for examiners at the Canadian Intellectual Property Office (CIPO) highlight inconsistencies between CIPO's examination practices and Supreme Court precedent.
In this recently reported decision, the Court granted Apotex leave to deliver Fresh as Amended Responding Statement of Issues for the reference into AstraZeneca's damages or Apotex's profits, following the Court's decision that the ‘693 Patent is valid and infringed by Apotex.
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