Gordon Stanley Clarke

The moving party brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the total amount of $8,522.

The court considered whether the defences of anticipation and obviousness to a patent infringement claim should be struck as an abuse of process, given a prior Patent Re-Examination Board decision.

The court held that the issues before the Board (patentability) and the court (validity) are distinct, and that the Patent Act reserves validity determinations for the courts.

The motion to strike was dismissed, allowing the defences to proceed.

The plaintiff in a patent infringement action brought a motion to compel the defendants to produce additional financial information and records relating to the use of the allegedly infringing mine doors, and to make officers available for cross-examination.

The court dismissed the motion, finding that the statement of claim did not plead an accounting of profits against the co-defendant purchaser, and that the request against the manufacturer defendant was premature as the plaintiff had not yet conducted examinations for discovery to identify specific missing documents.

The appellants appealed a motion judge's decision striking their statement of claim against the respondents, who were patent agents for the appellants' competitors.

The Court of Appeal upheld the motion judge's finding that the statement of claim disclosed no viable causes of action.

The court found no fiduciary duty or duty of care owed by the respondents to the appellants, no basis for a constructive trust, no pleaded conspiracy, no conversion, and no statutory cause of action for false statement since the respondents were not competitors.

The appeal was dismissed with costs.