Executive Summary: Key Legal and Evidentiary Issues

• At issue was whether the plaintiffs' statement of claim in a patent infringement action adequately pleaded material facts to frame the issues for discovery and trial.
• Central to the first motion was the plaintiffs' repeated use of open-ended language such as "including," "and/or," "for example," "without limitation," and "without prejudice" when describing the defendants' allegedly infringing systems and services.
• Whether the defendants' pleading of a Gillette defence, supported only by a broad matrix of 74 prior art references, met the minimum threshold for particulars was the core dispute in the second motion.
• Sufficiency of particulars for the defendants' prior use defence under section 56 of the Patent Act was also challenged and ultimately conceded.
• Disclosure of "Prior Art Products and Systems" in Schedule "B" was contested for its use of the word "including" and its reference to unidentified supporting documents.
• Governing principles from Mancuso v Canada, Western Oilfield, Stryker, LeddarTech, and Mostar were applied to assess whether each side had pleaded the "who, when, where, how and what" required in patent litigation.

Facts of the case

The proceeding is a Federal Court action for infringement of Canadian patent 2,921,460 (the 460 Patent), which relates to systems and methods for monitoring escalators and elevators (lift devices). XiCore Inc. is claimed to own the patent, and it is licensed to the affiliated Solucore plaintiffs. The plaintiffs sued KJA Consultants Inc., ATIS Elevator Inspections, LLC, and ATIS Ascenda Partners, LLC, alleging that the defendants' "systems and services" — including those offered under the E2M (Elevator and Escalator Maintenance Program), ATIS Alert, and TEAM (Total Elevator Asset Management) brands — infringe each of the 76 claims of the 460 Patent, and that the defendants also induce infringement. The dispute produced two pleadings motions before Associate Judge Trent Horne. In the first, decided February 16, 2026, the defendants moved to strike the statement of claim for lack of particulars. In the second, decided June 25, 2026, after the plaintiffs filed a fresh as amended statement of claim, the plaintiffs moved for particulars of the defendants' statement of defence and counterclaim, which relied on a Gillette defence, a prior use defence under section 56 of the Patent Act, and allegations of anticipation and obviousness supported by a Schedule "B" list of 74 prior art references.

Pleadings and language at issue

In the original statement of claim, the plaintiffs alleged that "The Defendants' systems and services incorporate the subject matter disclosed and claimed in the Asserted Claims" and that the defendants' "use, distributing, offering for sale, selling, supplying and/or otherwise making available of vertical transportation management services, technologies and systems to users within Canada is an infringement of the Asserted Claims." The Court noted that the pleading used "for example" or "e.g." six times, "and/or" ninety times, and "include" or "including" six times. In the defendants' subsequent pleading, paragraph 11 asserted the Gillette defence, stating that "all of the defendants' allegedly infringing activities were disclosed and enabled, or were rendered obvious, by each of the prior art documents, methods, uses, activities, services, and systems listed at Schedule 'B' and/or common general knowledge," and that if the defendants' activities fell within any asserted claim, "then such claim is necessarily invalid for anticipation, obviousness, or both." Seventeen entries in Schedule "B" — described as "Prior Art Products and Systems" (items 55–61 and 65–74) — referred to products such as Solucore's "e-volve" and the Hitachi Elevator RMS (1987), together with descriptive documents introduced by the word "including."

Reasoning and analysis

Applying the Federal Court of Appeal's guidance in Mancuso v Canada (National Health and Welfare), 2015 FCA 227, the Court reiterated that a pleading must tell the opposing party "who, when, where, how and what gave rise to its liability," while acknowledging from Bayer Inc v Cobalt Pharmaceuticals Company, 2017 FC 775 that vague pleadings need not be struck if they can be understood by "a mind willing to understand." On the first motion, the Court distinguished Stryker Corporation v Umano Medical Inc, 2016 FC 378 and LeddarTech Inc v Phantom Intelligence Inc, 2017 FCA 224, where a defined product anchor allowed some open-ended language, and found the plaintiffs' pleading closer to Mostar Directional Technologies Inc v Drill-Tek Corporation, 2017 FC 575, where merely reciting claim language and model names was held insufficient. The Court concluded that the combination of undefined "systems and services" and expansive language of "including," "and/or," "for example," "without limitation," and "without prejudice" would render discovery "unfair and unmanageable" and gave "the impression of a fishing expedition." On the second motion, the Court relied on Western Oilfield Equipment Rentals Ltd v M-I LLC, 2021 FCA 24 to explain that a Gillette defence requires a defendant to plead both what it is doing and how those activities are the same as, or not patentably distinct from, a specific prior art reference. Broadly invoking scores of prior art references "as a matrix," coupled with "without limiting the generality of the foregoing" and reliance on the common general knowledge, was held not to meet that standard. The Court also found that Arctic Cat Inc v Bombardier Recreational Products Inc, 2016 FC 1047 did not support mounting a Gillette defence on 74 references in a single paragraph. As for Schedule "B," the Court applied its prior reasoning in Samsung Bioepis Co, Ltd v Janssen Biotech, Inc, 2024 FC 1715 that words like "including without limitation" are "magnets for a demand for particulars," and held that the defendants must provide a closed list of the documents relied on to describe the Prior Art Products and Systems. The alternative request that the defendants particularize who, when, where, and how each such product was disclosed was declined as not necessary to prepare an informed defence.

Ruling and overall outcome

In the first decision, the defendants prevailed: the statement of claim was struck in its entirety, with leave to amend within 30 days, and costs of the motion were fixed at $2,750.00, payable by the plaintiffs to the defendants in any event of the cause. In the second decision, the plaintiffs were substantially successful on their motion for particulars: paragraph 11 (Gillette defence) and paragraph 12 (prior use defence) of the statement of defence and counterclaim, along with items 55–61 and 65–74 of Schedule "B," were struck with leave to amend, an amended pleading was ordered within 30 days, and costs — agreed by the parties subject to the Court's discretion — were fixed at $3,500.00, payable by the defendant to the plaintiff in the cause. The plaintiffs' motion was otherwise dismissed.