Patents
Infringement
Action claiming infringement of Canadian Patents No. 2169670, No. 2273148, seeking permanent injunction, damages, punitive and exemplary damages—Counterclaim seeking invalidity of patents, related disclaimers—Disclaimer under Patent Act, R.S.C., 1985, c. P-4, s. 48(1) allowing patentee to amend patent to claim less than that which claimed in original patent when certain mistakes made, i.e. original claim too broad—Disclaimer act of renunciation of subject matter—Cannot broaden claims or recast invention—Not substitute to reissue mechanism of Act, s. 47—Onus of showing mistake, accident or inadvertence on patentee—Public disclosure function of patents, general duty of good faith requiring disclaimer be filed promptly, diligently when patentee becoming aware of mistake—Validity of disclaimer depending on patentee’s state of mind (good faith, no improper purpose)—Here, patentee not specifying which elements of claim too broad, substantially amending original claim, adding new inventive elements, absence of bona fide mistake—Disclaimers invalid—Since admission by patentee that original claims too broad, patents also invalid—Action dismissed, counterclaim allowed.
Hershkovitz v. Tyco Safety Products Canada Ltd. (T-426-04, 2009 FC 256, Martineau J., judgment dated March 12, 2009, 115 pp.)