Another Reminder To Plead The Materials Facts Of Patent Infringement: Canadian National Railway Co V BNSF Railway Co

In Canadian National Railway Co v BNSF Railway Co1, Justice Locke reaffirmed the importance of pleading material facts to support allegations of patent infringement. As the case shows, repeating the language of the claims is insufficient if the pleading does not answer the main factual questions of who did what, where, when, and how. To withstand a motion to strike, facts providing a reasonable basis to conclude there has been infringement of all elements of the asserted claims should be pleaded, based on the actual acts of infringement and not solely the words of the patent claims.

The Federal Courts have repeatedly emphasized the need to plead material facts in order to frame the issues relevant to the case and to allow it to move forward in an efficient manner. In Mancuso v Canada (National Health and Welfare)2, the Federal Court of Appeal explained that pleading particular material facts is "fundamental to the trial process"3 because doing so provides notice and defines the issues. A proper pleading ensures that "the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action."

Bald allegations are at the other end of the spectrum and on their own do not establish a cause of action. The dividing line between material facts and bald allegations is not, however, always readily apparent. In Mancuso, Justice Rennie made the following observations:

"There is no bright line between material facts and bald allegations, nor between pleadings of material facts and the prohibition on pleading of evidence. They are points on a continuum, and it is the responsibility of a motions judge, looking at the pleadings as a whole, to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair.

What constitutes a material fact is determined in light of the cause of action and the damages sought to be recovered. The plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability.4"

One distinction that bears reference in the context of patent infringement is that statements based on information received from a party about things that actually happened and statements that describe a process or product tend towards the material fact end...

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