Cabot Safety Intermediate Corp. v. Arkon Safety Equipment Inc.
T-2165-95
Morneau P.
19/6/96
10 pp.
Application for order directing defendant to file, serve further, better particulars-Plaintiff's action for infringement of patent for invention "Earplugs"-In defence and counterclaim, defendant seeking declaration of invalidity of patent-Allegations in support contained in particulars-Before ordering particulars, Court must evaluate whether party having enough information to be able to understand other party's position and to prepare responsive answer-In paragraph 3 of defence defendant denying everything in paragraphs 3 to 21 of statement of claim not conforming to documents in question-Paragraphs 3 to 21 dealing with title to patent, describing what each claim of patent providing for-Defendant not having to further particularize paragraph 3-Sufficient to allow plaintiff to understand defendant's position with respect to that part of statement of claim, to prepare responsive reply-Paragraph 5 of defence denying paragraphs 25 to 30 in statement of claim as being unfounded in fact and in law-Paragraph 26 of statement of claim general allegation defendant's earplug reads on several claims of patent herein; paragraph 27 general allegation plaintiff's right, privilege, liberty infringed by defendant's alleged activities-Paragraph 5 fair answer to paragraphs 26, 27-In paragraph 25 plaintiff describing in 17 subparagraphs defendant's earplug-By simply providing mere denial, defendant violating RR. 408, 414, 415-Defendant should specify, for each subparagraph of paragraph 25, whether admits or denies it, and state material facts relied upon for so pleading-Ensuring real points in issue defined, limited-Plaintiff alleging paragraph 6, wherein defendant stating earplug not infringing any claims of patent herein, not stating distinctly with respect to each claim, relevant characteristics of its earplug which provide factual basis for stating no infringement-Particularization not required-Could not clarify denial at this stage without revealing approach, strategy intending to use at trial-Particulars, containing defendant's allegations in support of counterclaim of invalidity of patent, repeat, rephrase, restate substance of certain portions of Patent Act, s. 34-Constituting mere statement or partial statement of law-B & J Manufacturing Co. v. Canadian Pneumatic Tool Co. (Ltd.) et al. (1984), 77 C.P.R. (2d) 257 (F.C.T.D.) applied-Defendant to file, serve most of particulars requested with respect to particulars except as to prior art, date of invention-Request to strike statements in particulars denied as not obviously forlorn, futile and plaintiff not suffering prejudice if remaining-Federal Court Rules, C.R.C., c. 663, RR. 408, 414, 415.