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- with readers working within the Oil & Gas industries
In a recent decision on a motion to strike, the Federal Court struck a patent infringement statement of claim in its entirety, with leave to amend, for failing to "answer the fundamental questions of what product/service of each defendant is alleged to infringe what claims" of the patent at issue.
The plaintiffs in Solucore Inc. v. KJA Consultants Inc. alleged that the defendants infringed all 76 claims of Canadian Patent No. 2,921,460 (the '460 Patent). The statement of claim reproduced each of the 76 patent claims and prefaced them with the formulaic assertion that the defendants' "systems and services use and/or provide the method of claim [x]." The pleading relied heavily on expansive language such as "including", "for example" and "and/or" (which alone was used 90 times), without identifying which products/services of each defendant were alleged to infringe which claims of the '460 Patent.
Reviewing the jurisprudence, the Federal Court confirmed that open-ended language is not inherently improper. Pleadings may survive where only a small number of claims are asserted or where the allegedly infringing product is clearly identified and tied to defined claim elements. However, where a large number of claims are asserted without further support for allegations of infringement or where expansive language implies additional undefined grounds for relief, open-ended language is impermissible.
The warning to plaintiffs is clear: complexity and asymmetry of knowledge do not excuse vagueness. Plaintiffs must "plant a flag" to identify the specific claims allegedly infringed by specific allegedly infringing acts or products. Without that grounding, a statement of claim may be struck.
The decision may be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
