An Allegation of Patent Infringement Must Set Out Facts Describing the Infringing Behaviour
Heli Tech Services (Canada) Ltd., et al. v. Weyerhaeuser Company Ltd., et al. 2009 FC 592 (O’Reilly, J.)

June 8, 2009

Derek C. Creighton for the Plaintiffs, Heli Tech Services (Canada) Ltd., et al.
J. Kevin Wright for the Defendants, Island Timberland GP Ltd. and Brascan Timberlands Management GP Inc.
Mark S. Oulton and Jacqueline D. Hughes for the Defendants, Cascadia Forest Products Ltd., Timberwest Forest Corp., and International Forest Products Ltd.
Mark Fancourt-Smith for the Defendant, Canadian Air-Crane Ltd.

This was an appeal by the Plaintiffs from Prothonotary Lafrenière’s decision striking various paragraphs from the statement of claim alleging patent infringement for not disclosing a reasonable cause of action as against certain Defendants.

The Court confirmed that in an action for patent infringement the laintiff must set out facts describing the defendant’s allegedly infringing behaviour, and that the plaintiff cannot make speculative allegations in the hope of learning more at the discovery stage. In addition, the Court accepted that the test on a motion to strike is whether it is plain and obvious that the plaintiff cannot succeed against the defendant in respect of the particular allegations.

On this appeal, the Plaintiffs argued that it was extremely difficult to establish a foundation for their allegations given that the allegedly infringing behaviour, namely, standing-stem logging, typically takes place in remote areas. The Plaintiffs also argued that the liability of certain Defendants can be inferred from their corporate relationships, the movement of employees from one company to another, their stewardship of large logging operations, their agency relationships with subcontractors, and their sophisticated evading of liability by using subcontractors with limited resources as shields. Notwithstanding these arguments, the Court held that the Plaintiffs’ statement of claim clearly failed to set out sufficient material facts supporting the allegations of direct infringement and inducement such that it was plain and obvious that the plaintiffs would not succeed against the defendants in question. To conclude otherwise would be to permit the Plaintiffs to use the discovery process to explore potential grounds for their infringement action, which cannot be permitted.

By: Michael Crichton, Gowling Lafleur Henderson LLP