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Pengo Hydra Pull of Canada Limited (Appellant) v.
George L. Leithiser and The Timberland Ellicott Limited (Respondents)
Court of Appeal, Jackett C.J., Thurlow J. and Cameron D.J.—Ottawa, November 9, 1972.
Patents—Pleadings—Plea of ambiguity—Necessity of pleading.
APPEAL from Trial Division.
I. Goldsmith, Q.C., and D. J. Bellehumeur for appellant.
R. G. McClenahan and D. I. Lack for respondents.
JACKET' C.J. (orally)—.This is an appeal from a judgment of the Trial Division requiring par ticulars of a plea of ambiguity in the claims in a patent.
While it has always been open to the Court to hold a claim in a patent invalid for ambiguity even though it was not pleaded, and it must continue to be so, it does not follow that an argument based on ambiguity that has not been pleaded will be acted on without giving the opponent a fair opportunity to prepare to answer it on such terms as to costs as seem appropriate.
Pleading of ambiguity has always been regarded as proper in order to avoid taking an opponent by surprise and is certainly necessary if it involves a question that calls for evidence.
A pleading of ambiguity, like any other plead ing, must be framed with sufficient particulari ty. In our view, it is not sufficiently particular unless it identifies the ambiguity or ambiguities on which it is proposed to rely.
We see no reason to interfere with the discre tion of the learned trial judge in this case.
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