Fero Holdings Ltd. v. Entreprises Givesco Inc.
T-1828-98
Pelletier J.
23/8/99
7 pp.
Motion for summary judgment to dismiss patent infringement claim as applies to specific product on ground prior art-Motion based on Gillette defence (Gillette Safety Razor Co. v. Anglo-American Trading Co. (1913), 30 R.P.C. 465 (H.L.)) permitting judgment to be rendered in patent case without necessity of interpreting patent-Plaintiff holding patent in relation to type of masonry wall-Alleging patent infringed by type of wall tie assembly (structure A) combined with insulation retaining device which, when attached to structure A product, makes system which anchors veneer wall to backup wall, and at same time restrains insulation against backup wall-Dispute arising out of particular construction contract in which Blok Lok's product used in preference to plaintiff's-Blok Lok admitting sale of structure A to that job, but denying sale of insulation retaining clip-Catalogue, promotional material showing wall tie assemblies in use prior to date of plaintiff's patent-Person skilled in art would have been aware of that type of wall assembly at time patent applied for-Plaintiff responding infringing device combining wall tie assembly with insulating retaining device so that combination of two infringing patent-In such case, patent combination patent in which inventiveness consisting of novel arrangement of known elements to achieve new end-To infringe combination patent, each of elements must be infringed-Sale of wall tie assembly resembling structure A would not infringe plaintiff's patent-Summary judgment application seeking dismissal of plaintiff's claim as relating to structure A simpliciter-Federal Court Rules providing summary judgment can be awarded even if factual disputes providing judge after taking hard look at evidence determining no genuine issue for trial-In addition, summary judgment can be granted for only part of claim, leaving balance to be determined-Difficulties with respect to summary judgment limited to structure A: as no obvious identification of structure A as adjustable brick connector referred to in claim, proving structure A not infringing not necessarily proving Blok Lok's adjustable brick connector not infringing; partial summary judgment will not reduce length, complexity of litigation, but may create new issues of res judicata, issue estoppel-Application dismissed-Federal Court Rules, 1998, SOR/98-106.