Particulars Matter: Federal Court Strikes Gillette Defence Pleading

Recently, the Federal Court in Solucore Inc. v. KJA Consultants Inc., 2026 CanLII 62325 (FC) provided an important reminder that patent defendants should not rely on broad, open-ended references to prior art when pleading a Gillette defence.

The underlying infringement action involves Solucore’s patent related to systems and methods for monitoring escalators and elevators, also called lift devices.  The Defendants denied infringement and asserted the claims are invalid on the basis that they are anticipated and obvious. They also asserted prior use and a Gillette defence, the latter relying on 74 prior art references listed in a schedule to their pleading.

The Plaintiffs brought a demand for particulars, including in respect of the Gillette defence. In response, the Defendants stated that the entirety of the references in the schedule, and all combinations, were relevant to the Gillette defence. Dissatisfied with this response, the Plaintiffs brought a motion to strike this defence, among other things.

Associate Judge Horne reviewed the court’s guidance on the Gillette defence in Western Oilfield and Gillette Safety Razor Company, emphasizing that a Gillette defence is an assertion that the defendant’s product or method is the same as, or not patentably distinct from, what was already disclosed in the prior art. However, the Court did not read this as opening the door to broad and general reliance on a plethora of prior art references to support a Gillette defence.

The Court criticized the Defendants’ attempt to plead the defence by referencing the entirety of 74 prior art references, all possible combinations of those references, and common general knowledge. Such a pleading failed to clearly identify what activities the Defendants were undertaking and how those activities corresponded to specific prior art.

The Court also criticized references to prior art using open-ended language such as “including” because such wording implies that additional documents may be relied upon, making these pleadings “magnets for a demand for particulars”. The Court found that if other documents are contemplated, the Plaintiffs are entitled to know what they are.

For the reasons described above, the Court struck the Defendants’ Gillette defence, granting leave to amend, among other relief.

This decision reinforces the requirement for pleadings to adequately define and frame the issues for discovery and trial. This is particularly the case for a Gillette defence, where broad, open-ended references to a collection of prior art are likely to invite scrutiny.