In Rowland v. Stephen, Justice Petersen struck Mr. Rowland’s statement of claim and denied his leave to amend on the basis that Mr. Rowland, having assigned the full and exclusive rights to his invention including any patent that may be granted in respect thereof, no longer had any proprietary rights to the invention to assert. As such, he ruled that the statement of claim, however amended, would have no reasonable prospect of success and disclosed no reasonable cause of action under Rule 21.01(1)(b) of the Rules of Civil Procedure
Mr. Rowland, a named inventor on Canadian and US patents that relate to vitamin and mineral compositions containing shilajit to enhance their energetic properties, was seeking to amend his statement of claim to allege, amongst other things, that the defendants committed “theft of intellectual property” as opposed to his original allegation that the defendants had committed theft of a “trade secret”. For their part, the defendants sought a motion to strike his statement of claim on the basis that “theft of intellectual property” is not a cause of action. According to the defendants, the only potential claim would have been a claim for patent infringement which Mr. Rowland did not plead.
Justice Petersen allowed that Mr. Rowland, a self-represented litigant, had not appreciated “trade secret’ as a technical legal term that requires confidential commercial information known by only one person or relatively few persons and a demonstrated intent to treat the information as secret. By obtaining patent protection and publicly disclosing his invention Mr. Rowland had forfeited any right to a “trade secret. Ultimately however, it was also not necessary for Justice Petersen “to decide whether, during the currency of the patents, there is any recognized cause of action that could be plead other than patent infringement” such as “theft of intellectual property” since Mr. Rowland, by virtue of having assigned all his rights to the shilajit invention, now no longer had any right to plead any cause of action with respect to any intellectual property thereof.
A copy of the decision may be found here.