PATENTS |
Infringement |
Canamould Extrusions Ltd. v. Driangle Inc.
A-162-03, A-278-03
2004 FCA 63, Stone J.A.
12/2/04
24 pp.
Principal appeal from Trial Division (as it was then constituted) order ((2003), 229 F.T.R. 104 (F.C.T.D.)) finding reissued patent valid, not infringed--Other appeal from judgment awarding respondent 50% of its costs--Parties agreed award of costs should be varied if Court finds respondent infringed patent--Patent in respect of "Method and Apparatus for Manufacturing Decorative Mouldings" --Although patent reissued, slight change made therein not material to present appeals--Claims 1 through 8 of patent relating to methods of manufacturing elongate decorative mouldings, while claims 9 though 18 describing devices to be used for manufacturing such mouldings--Validity of patent not under appeal--Whether Trial Judge erred in construing claims of patent and if so, whether she erred in finding patent not infringed--Decisions in Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067 and Free World Trust v. Électro Santé Inc., [2000] 2 S.C.R. 1024, rejected so-called "two-step" approach to patent construction whereby courts first considered whether on literal construction allegedly infringing device embodied patented invention and, if not, whether device embodied "pith and marrow" or "substance" of invention--Single-step or purposive approach preferred--As Binnie J. explained in Whirlpool, "key to purposive construction is therefore the identification by the court, with the assistance of the skilled reader, of the particular words or phrases in the claims that describe what the inventor considered to be the `essential' elements of his invention"-- In Free World Trust, Binnie J. enumerated several propositions with respect to construction of patent claims, including that claims language will, on a purposive construction, show some elements of claimed invention essential while others non-essential--Also set out manner of allocation--Onus on patentee to show, to skilled reader, claimed feature of invention obviously substitutable--Task of Trial Judge to determine, on purposive construction of patent, which elements of claimed invention crucial or "essential" and which ones not--Clear Trial Judge appreciated task to purposively construe patent through eyes of skilled reader as of date of publication--Open to Trial Judge to adopt construction of claims different from construction put forward by parties--In summary, patent teaches essential element of invention "continuous" or uninterrupted table across width of foam core from input portion though to and including exit of core from coating containment chamber--Nothing in context of claims or in expert evidence indicates patentee aware of or intended to claim variants of that element--Essential nature of element supported by purposes of table as specified under patent--Appellants not showing Trial Judge incorrectly construed claims 1, 9--As to infringement, Trial Judge did not err in finding issue of infringement could be determined solely on basis respondent's device had top surface interrupted by trough and dams or wipers--By incorporating trough and dams or wipers into its device, respondent omitted essential element of both claims 1 and 9, i.e. "continuous" table top-- Consequently, Trial Judge found no infringement of those claims or of any of dependent claims, and rightly dismissed action--Appeals dismissed.