PATENTS |
Infringement |
Norac Systems International Inc. v. Prairie Systems and Equipment Ltd.
A-223-02
2003 FCA 187, Décary J.A.
10/4/03
5 pp.
Trial Judge ((2002), 19 C.P.R. (4th) 360) found patent at issue (No. 2096761, issued on July 4, 1995, for mobile weighing system to weigh loads on trucks or trailers) invalid for lack of utility but if valid, not infringed--Appellant arguing Trial Judge should not have entertained argument on issue of lack of utility as not properly raised in pleadings-- Clear plaintiff entitled to fair warning of attacks on validity of patent: TRW Inc. v. Walbar of Canada Inc. (1991), 39 C.P.R. (3d) 176 (F.C.A.)--Trial Judge erred in deciding patent invalid on ground lacking utility, as issue not properly raised in pleadings--As other grounds for invalidity not accepted by Trial Judge and as respondent has not challenged Judge's findings with respect to other grounds, appeal with respect to invalidity will be allowed and finding of invalidity on ground of lack of utility quashed--With respect to finding of non- infringement, Trial Judge did not commit any palpable or overriding error in holding respondent's device did not infringe claim 6 of patent--Appeal allowed in part, finding of invalidity on ground of lack of utility will be set aside and finding of non-infringement will be confirmed.