Thursday, January 18, 2018

Promise Doctrine Zombie Watch: Update, LLC v Wulftec International Inc 2018 FC 41 Annis J

The promise doctrine was abolished by the SCC in AstraZeneca 2017 SCC 36 (see here). Early indications were that it will not rise from the dead. This decision of Annis J confirms that the promise doctrine is so thoroughly dead that it cannot even survive a motion to strike.

The defendant Wulftec sought to amend its statement of claim to add an allegation that the asserted patents are devoid of utility [2]. While it is a bit difficult to understand exactly what was being alleged by the proposed amendments [5], the plaintiff Lantech argued, inter alia, that the allegations were based on an alleged promise of utility in the patent description [6]. Annis J agreed with this submission [7], and concluded that the proposed utility amendments did not meet the requirement of disclosing a reasonable cause of action [8].

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