Docket: A-473-16
Citation:
2017 FCA 224
|
CORAM:
|
NOËL C.J.
GAUTHIER J.A.
DE MONTIGNY J.A.
|
|
|
|
BETWEEN:
|
|
LEDDARTECH INC.
|
|
Appellant
|
|
and
|
|
PHANTOM
INTELLIGENCE INC.
|
|
Respondent
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on
November 15, 2017).
NOËL C.J.
[1]
In 2015, LeddarTech Inc. (LeddarTech) began an
action for patent infringement against Phantom intelligence Inc. (Phantom). In
August 2016, Prothonotary Morneau (the Prothonotary) struck a part of
Leddartech’s statement of claim on the ground that it was speculative and an
abuse of the court’s process pursuant to rule 221(1)(f) of the Federal
Court Rules, SOR/98-106 [Rules]. His decision was subsequently
upheld by Roussel J. (The Federal Court judge). This is the decision now under
appeal.
[2]
The following paragraphs of the statement of
claim provide context for the pleading at issue:
[9] The Plaintiff LeddarTech was recently
informed that the Defendant Phantom has been, and continuing to the present,
actively involved in the development and commercialization in Canada of LiDAR
systems implementing a method for acquiring a detected light optical signal and
generating an accumulated digital trace, the method comprising:(1) providing:
a) a light source for illumination of a field of view; b) an optical detector;
c) an analog-to-digital converter (ADC); (2) emitting multiple pulses by said
light source; (3) detecting reflection signals associated with the pulses; (4)
introducing a phase shift between light pulses and the acquisition of one or
more samples by the ADC in the corresponding reflections and accumulating the
samples from multiple reflections to generate the accumulated digital trace.
[10] The LiDAR systems developed and
commercialized by or on behalf of Phantom having the characteristics described
in paragraph 9 above include at least the “new Wideview LiDAR system” referred
to in recent trade publications and depicted below. Additionally, Phantom may
manufacture, or have manufactured on its behalf, use, sell or license other
LiDAR systems or methods comprising said characteristics that LeddarTech is not
currently aware of, but that are within the knowledge of Phantom.
[3]
The last sentence of paragraph 10 reflects the
part of the pleading that was struck. The Prothonotary struck this sentence at
the tail end of his order at his own initiative on the basis that it was
[TRANSLATION] “clearly speculative” without citing any case law or explaining
why this plea amounted to an abuse of the process of the court.
[4]
The Federal Court judge in the ensuing appeal
issued a speaking order which shows that she considered the relevant case law.
Specifically, she accepted Phantom’s argument that Emerson Electric Co. v.
Canadian tire Corporation Ltd., 2016 FC 308 [Emerson Electric] “[…] is distinguishable from the current situation as there
is no nexus between the Wideview LiDAR and other products of Phantom claimed
but unknown;”(Order, page 4).
[5]
We agree with the parties that Emerson
Electric was well decided and provides a useful summary of the law with
respect to open-ended pleadings in patent infringement cases. However,
according to this decision, the nexus which the Federal Court judge had to look
for is not between “the Wideview LiDAR and other
products of Phantom claimed but unknown;” but between the
characteristics of the Wideview LiDAR system and other LiDAR systems sharing
those characteristics (Emerson Electric, paras. 26 and 27).
[6]
Had the Federal Court judge asked the proper
question, she would have been bound to conclude that the nexus identified in Emerson
Electric is present here as the “other LiDAR
systems or methods” referred to in paragraph 10 are those that share the
detailed characteristics set out in paragraph 9.
[7]
As such, we are not looking at an open ended
pleading because LeddarTech has laid out sufficient material facts to allow
Phantom to know precisely which “other LiDAR systems or
methods” are alleged to be infringing and is in a position to fully
answer the case against it by either denying the existence of these other
systems or methods or, if they exist, by demonstrating that they are not
infringing.
[8]
The Federal Court judge therefore committed a
legal error in failing to ask the appropriate question. As otherwise the
Prothonotary failed to explain how the speculation which he identified is
abusive in any way, his decision also cannot stand.
[9]
We would therefore allow the appeal with costs,
set aside the decision of the Federal Court judge and, giving the decision
which she ought to have given, we would allow the appeal from the decision of
the Prothonotary, with costs. These are fixed at 1 250.00$ in each instance.
« Marc Noël »
Email this Content