The Court granted the plaintiffs' motion to strike portions of the defence on the grounds that it is plain and obvious there is no reasonable cause of action and the portions constituted an abuse of process. Specifically, the plaintiffs' patent had been the subject of conflict proceedings prior to its issuance. The defendants, as part of their defence and counterclaim, sought to impugn the patent on the basis of inventorship. However, in doing so, the defendants did not raise any possible inventors other than those involved in the conflict proceedings.
The Court found that Section 61(1) of the old Patent Act is determinative of the issue of inventorship when there has been no missed conflict. Thus, it is plain and obvious that the defendant's pleadings disclose no reasonable cause of action.
Furthermore, the Court found that the defendants were seeking to collaterally attack the Order that settled the conflict proceeding. The fact that that Order issued on consent and that the defendants were not parties to that proceeding is of no bearing in this context as the defendants could have sought to vary that Order by application, by appeal or by separate action to set it aside on the basis of fraud. If the defendants are unable or unwilling to make a direct attack on the issues finally determined by that Order, they should not be permitted to do so collaterally in the context of this action.
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