2023 FC 11: Seastone IP successful in prior user rights pleading amendment appeal

In a recent decision of the Federal Court, Justice Manson allowed an appeal opposing a pleading amendment related to a section 56 prior user rights defence.

NCS brought a summary judgment motion seeking to have Kobold’s claims dismissed based on a prior user rights defence pursuant to section 56 of the Patent Act. Justice Zinn granted summary judgement to NCS with respect to its Mongoose device (2021 FC 1437).

Despite Justice Zinn summarily dismissing the Mongoose device, Kobold sought amendments to its Statement of Claim that maintained allegations of infringement through the use of the Mongoose device.

NCS objected to these amendments on the basis that Justice Zinn’s summary judgment decision foreclosed any claims with respect to the 2012 and 2018 Mongoose. The case management judge disagreed and granted Kobold leave to amend its Statement of Claim. NCS appealed the Order.

On appeal, Justice Manson held that Justice Zinn’s decision to grant summary judgment to NCS with respect to the Mongoose applied to both the 2012 Mongoose and the 2018 Mongoose.

Read the full decision here.