Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of the statement of claim in pleading material facts for patent infringement, including the required “who, what, when, where, why, and how.”
• Use of vague, open-ended pleading language (“including,” “and/or,” “for example,” “without limitation,” “without prejudice”) that failed to clearly identify specific infringing products/services and corresponding patent claims.
• Failure to specify how each defendant’s identified “systems and services” allegedly infringe particular claims of the 2,921,460 patent, and what constitutes a “system” versus a “service.”
• Concern that the pleading operated as an impermissible fishing expedition, seeking to use discovery to uncover unknown infringement rather than pleading known facts.
• Impact of inadequate pleadings on discovery scope, with the risk of unfair, unmanageable discovery into all lift-related products and services since 2017.
• Reasonableness and limits of demands for particulars in patent litigation, including when a lengthy particulars request itself veers into seeking evidence rather than clarification.

Background and parties

This case arises from a Federal Court action in Canada for alleged infringement of Canadian patent 2,921,460 (the 460 Patent). The patent is said to be owned by XiCore Inc. and licensed to affiliated companies Solucore Inc., Solucore Atlantic Inc., Solucore Ottawa and Region Inc., and Solucore Québec Inc. These entities are the plaintiffs. They sue three defendants: KJA Consultants Inc., ATIS Elevator Inspections, LLC, and ATIS Ascenda Partners, LLC. The dispute is in the patent and civil procedure realm, not insurance, so there are no insurance policy terms or contractual insurance clauses in issue in this decision.

Facts relating to the patent and alleged infringement

The 460 Patent relates to systems and methods for monitoring escalators and elevators, also referred to as lift devices. The plaintiffs describe the 76 claims of the patent as covering the management and assessment of elevator and escalator systems for optimal performance, remote monitoring of such devices, and the evaluation and scoring of elevator and escalator maintenance. The statement of claim alleges that each of the three defendants provides “systems and services” that infringe every one of the 76 claims. These “systems and services” are said to include offerings branded as E2M (Elevator and Escalator Maintenance Program), ATIS Alert, and TEAM (Total Elevator Asset Management). The pleading asserts, in broad terms, that the defendants’ offerings provide an online portal that facilitates monitoring and management of lift devices, including through online platforms. For each patent claim, the statement of claim effectively reproduces the claim language, preceded by general allegations that the “defendants’ systems and services use and/or provide the method of claim [x].” The plaintiffs also allege inducing infringement, asserting that the defendants knowingly directed and influenced others to infringe and that these infringements would not occur but for the defendants’ actions.

The nature of the pleading and the demand for particulars

The Associate Judge scrutinizes the way the plaintiffs pleaded their case. The statement of claim is heavily drafted with open-ended terminology. It frequently uses phrases like “for example,” “e.g.,” “and/or,” and “including,” to describe the defendants’ products and services and the alleged infringement. The court notes a very high frequency of these expressions, underscoring how non-committal and expansive the pleading is. After receiving the claim, the defendants served a 22-page demand for particulars with nearly 200 items and sub-items. They sought, among other things, identification of the “subject matter” allegedly incorporated from the patent, the specific “systems and services” said to infringe, and detailed explanation—ideally in claim chart form—of how those systems and services allegedly incorporate the subject matter of each asserted claim. The plaintiffs’ responses to the demand for particulars were largely resistant. They frequently labelled the questions as vague, unnecessary, disproportionate, or as seeking legal conclusions, expert opinion, or evidence such as claim charts. They asserted that the statement of claim already provided sufficient particulars and that the full extent of infringement was within the defendants’ knowledge. They also relied on the idea that claim construction and identification of subject matter would be matters for expert evidence at a later stage. In one key response, they repeated that the allegedly infringing “systems and services” include offerings provided from 2017 onward under the E2M, ATIS Alert, and TEAM brands. However, they framed this “without limiting the allegations described in the Statement of Claim and without prejudice,” thereby preserving even broader, unspecified allegations. The defendants, finding these responses unsatisfactory, brought a motion to strike parts of the claim and parts of the responses to the demand for particulars.

Legal framework on particulars and adequate pleadings

The court canvasses the governing law on pleadings and particulars. Relying on the Federal Court of Appeal’s decision in Mancuso v Canada (National Health and Welfare), the Associate Judge reiterates that pleadings must set out material facts in sufficient detail to support the claim and the relief sought. Pleadings must do more than recite bare allegations or legal conclusions; they must allow the defendant to know the case it must meet, guide the discovery process, and define the scope of relevant evidence at trial. The court stresses that litigation is not meant to be a fishing expedition. A plaintiff cannot launch an action in the hope that something will surface later through discovery. This applies equally in patent cases: a patentee cannot use discovery to explore potential grounds for infringement that were not grounded in pleaded material facts. At the same time, the court notes that there is some latitude: vague or poorly worded pleadings are not automatically struck if, read with a “mind willing to understand” and in the full procedural context, they adequately define the issues. The level of detail required in a patent infringement pleading depends on the nature of the technology and the context of the case. The court surveys examples: in Stryker, a relatively simple product (a hospital bed siderail) and a small number of patent claims allowed the plaintiff to plead infringement primarily by tying specific physical product models to the elements of the asserted claims. In LeddarTech, an allegation that a “Wideview LiDAR system” infringed, combined with detailed characteristics and an express limitation to systems with those characteristics, was sufficiently anchored and not overly speculative. By contrast, in Mostar, a broad assertion that many named models infringed numerous claims, without explaining “how” they did so, was held to be inadequate. Simply reciting claim language or listing model names did not give the defendant a clear picture of the specific infringing acts.

Application of the law to the plaintiffs’ statement of claim

Turning to the case at hand, the court finds that the plaintiffs’ statement of claim does not adequately define the issues or provide sufficient notice of what conduct is alleged to infringe which claims of the 460 Patent. The pleading uses the composite term “systems and services” without defining what constitutes a “system” as distinct from a “service,” even though the consistent use of both terms suggests a meaningful distinction. It does not clearly specify whether each defendant is alleged to offer E2M, ATIS Alert, and TEAM, or whether these branded offerings are associated with only one or some of the defendants. Unlike Stryker or LeddarTech, there is no clear “anchor” product or configuration from which an inference of infringement can be drawn. Instead, there are three broad branded offerings, wrapped in language such as “including,” “and/or,” and “for example,” making it unclear which concrete products or configurations are actually at issue. The court is particularly critical of how the plaintiffs combined their already open-ended statement of claim with responses to the demand for particulars that further enlarged the scope of the allegations by stating that the particulars were given “without limiting the allegations” and “without prejudice.” This left the defendants with no precise mapping between specific products or services and specific patent claims, and no clarity as to what features were alleged to meet which claim elements. The court concludes that, taken together, the statement of claim and the responses to the demand for particulars fail to answer the essential questions: which specific products or services of each defendant are alleged to infringe, which specific patent claims are said to be infringed by each, and in what manner those products or services are alleged to do so. In effect, any lift-related product or service offered by the defendants since 2017 could be swept into the action. That breadth would make documentary and oral discovery unfair and unmanageable, reinforcing the impression that the action is being used to search for, rather than pursue, defined instances of infringement.

Consideration of the demand for particulars

Although the motion formally sought to strike certain paragraphs from both the claim and the plaintiffs’ responses to the demand for particulars, the Associate Judge focuses on the core defect in the claim rather than adjudicating the propriety of each individual particular. The court acknowledges that many of the particulars requested by the defendants went beyond clarification and moved into the realm of seeking evidence, such as claim charts and expert-level explanations. Some of these would not have been ordered even if contested. However, this overreach by the defendants does not cure the defects in the plaintiffs’ pleading. The fundamental problem remains that the statement of claim, amplified by the “without limitation” style responses, is too open-ended to define a manageable and fair dispute.

Decision on the motion and remedial orders

In light of these findings, the court grants the defendants’ motion to strike. Rather than surgically removing or amending selected paragraphs, the Associate Judge holds that the statement of claim requires a fundamental redrafting. The document, along with the voluminous demand for particulars and the sprawling responses, has become unwieldy. Simply striking certain paragraphs and underlining amendments would produce an incomprehensible pleading. The court therefore orders that the statement of claim be struck in its entirety, but with leave to amend. The plaintiffs are given 30 days from the date of the order to serve and file a fresh, amended statement of claim that properly sets out material facts and clearly identifies the infringing activities alleged against each defendant. Within 45 days, the parties must also write to the Court, preferably jointly, with a proposed timetable and mutual availability for a case management conference. This ensures that once a proper pleading is in place, the matter can move forward under active case management.

Costs and identification of the successful party and monetary outcome

On costs, the court emphasizes its wide discretion under the Federal Courts Rules and notes that the outcome of the motion was not close. The plaintiffs’ broad and open-ended allegations of infringement were plainly inconsistent with the requirements of the Rules and the guiding jurisprudence. As the successful parties on the motion, the defendants—KJA Consultants Inc., ATIS Elevator Inspections, LLC and ATIS Ascenda Partners, LLC—are awarded their costs. Referencing Column 3 of the revised Tariff B, the court fixes costs at $2,750.00, payable by the plaintiffs to the defendants “in any event of the cause,” meaning the costs award stands regardless of how the case ultimately ends. No damages or other monetary compensation for infringement are determined at this stage; the decision is strictly procedural and interlocutory, addressing only the adequacy of the pleadings. Accordingly, the successful parties on this motion are the defendants, and the only quantified amount ordered in their favour is $2,750.00 in costs, with no damages award yet determined.