- Inducement to Induce Infringement Allegation Not Struck from Pleading
- March 24, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
- Law Firm: Borden Ladner Gervais LLP - Ottawa Office
Elbit Systems Electro-optics Elop Ltd. v. Selex ES Ltd., 2016 FC 1000
The Defendant, Selex, brought a motion to strike parts of the Statement of Claim. The motion was granted in part.
The first category of pleadings dealt with whether a plaintiff could plead "inducement to induce infringement" as a cause of action. The Court held that as inducement is an act of infringement, the Court of Appeal's test for inducement could still apply. The Defendant did not meet its burden to establish that such indirect inducement did not have the slightest chance of success. Thus, the allegation was not struck.
The Court held that the existence of an industry practice is an allegation of fact. Thus, it should not be struck. The Defendant also sought to strike the allegation that "at all material times" it was aware of the patent at issue. The Court held that this is technically an allegation of a state of mind that ought to be particularized, rather than struck. The use of partial motions to strike should not be encouraged where the defect can be cured by an informal request for particulars. Furthermore, pleadings as to the future were held to support a claim for certain species of damages, rather than being a speculative cause of action
The Court struck allegations that the government considered a different procurement process and preferred the allegedly infringing bid, as there was no materiality to these allegations, even as context or part of the surrounding circumstances. The Court held that their presence was prejudicial.