PATENTS |
Practice |
Nicholson v. CWS Industries Ltd.
T-1791-00
2002 FCT 1225, Hargrave P.
26/11/02
8 pp.
Motion to obtain documents to determine defendant's profit on clearing rakes, including profits on associated lugs and couplers used to connect rakes to arms of excavating machines--Plaintiff holds patent on tined rake attachment for use with powered digging machines--Rake attachments have various uses including clearing away of underbrush--Various well-established rules for production of documents--To begin, production of documents governed by relevance, not discretion, with even marginally relevant documents to be produced, leaving it to trial judge to make final determination --Regarding relevancy, document relevant if relating to matters in question in action and if reasonable to suppose document containing information which may either directly or indirectly enable party requiring affidavit to advance own case or to damage case of adversary--Court must determine whether documents showing profit on connecting device relevant, or even remotely relevant, in context of pleadings-- Mere reference to document in pleading not making document itself pleading--Patent attached to statement of claim, so long as sufficient directions in statement of claim as to applicable portions of patent, becoming part of statement of claim--In present case, clear enough directions in statement of claim, referring to specific portions of attached patent, to make clear claim in part for pivoting mechanism--Court concluding documents relating to profit on defendant's pivoting mechanism marginally relevant--Even a marginally relevant document must be produced, leaving to trial judge to determine whether documents have any bearing on particular aspect of damages claimed.