“Where are the lines for intellectual property lawyers to be able to advise their clients of what can be brought in the Federal Court? What simply cannot be brought in the Federal Court in terms of litigation?”
Dipchand says that this case further defines what can brought before the Federal Court, that just because litigators may have a case that falls within its statutory jurisdiction does not mean a second claim can tag along with it.
“So, just because I’ve got a claim, and it’s relates to patent infringement [and] patent validity, and there happens to also be a directly related dispute, arising out of contract between private parties. That mere fact doesn’t get me straight into the Federal Court.”
McCain alleged that J.R. Simplot infringed Canadian Patent No. 2,412,841 entitled “Process for Treating Vegetables and Fruit Before Cooking.” McCain originally said Simplot infringed its patent through use of a system which employs a pulsed electric field (PEF) to reduce the resistance to cutting of frozen fruits and vegetables after they are cooked. However, since Simplot enlisted the use of this technology through Elea Vertriebs-und-Vermarktungsgesellschaft, mbH (Elea), Simplot then commenced a third-party claim of infringement against Elea, protesting they had not wholly infringed upon this patent.
In the contract between Simplot and Elea, Elea stated its PEF systems did not infringe any patent, and that Simplot’s use of such systems would not infringe any patent. In its third-party claim, Simplot seeks declarations that Elea induced the infringement of the patent and that Elea is liable, individually or jointly with Simplot.