Hi-Qual Manufacturing Ltd. v. Rea's Welding & Steel Supplies Ltd.
T-3235-90
Tremblay-Lamer J.
1/3/94
19 pp.
Allegation of infringement on patent by manufacturing, using, selling or exchanging for consideration to others, livestock feeder for cylindrical bales in Canada without leave, license, permission or consent of plaintiffs-Plaintiffs owner and sole licensee of patent and since 1990, defendant without license or permission, manufactured and used feeder in violation with patent-Plaintiffs seeking: (1) declaration patent valid and infringed by defendant; (2) permanent injunction restraining defendant from further infringing plaintiffs' rights; (3) damages; (4) order for delivery up to plaintiffs of all materials and products which infringe patent; (5) costs of action-Under Patent Act, s. 44, patentee has exclusive right with respect to invention-In accordance with s. 34, Courts recognized some latitude permissible in context of determining infringement-In absence of literal or textual infringement, established when alleged infringer found to have appropriated "pith and marrow", or essential components, of invention-Purposive approach used to determine whether infringement occurred: intention of inventor, analysis of infringer's feeder-No infringement occurred because defendant's feeder constructed differently leading to variation in way feeder working-Defendant raising two grounds of invalidity of patent: anticipation, obviousness-Pursuant to s. 47, presumption of validity of patent and onus on defendant to prove patent in suit invalid-To anticipate, prior publication must be equal to patent in suit and enabling disclosure of claimed invention: Beloit Canada Ltd. v. Valmet Oy (1986), 8 C.P.R. (3d) 289 (F.C.A.)-No single prior publication containing clear direction skilled person reading and following it would in every case and without possibility of error be led to claimed invention-No commercial use of invention because defendant experimenting-Defendant's feeder not obvious because existence of "scintilla of invention" in creation of cylindrical livestock feeder-Invention claimed cannot be broader than invention made-Plaintiffs patent not ambiguous-No infringement of patent by defendant and claims of patent by plaintiffs valid-Patent Act, R.S.C., 1985, c. P-4, ss. 34, 44 (as am. by R.S.C., 1985 (3rd Supp.), c. 33, s. 16), 47.