American Cyanamid Co. v. Bio Agri Mix Ltd.
T-2479-93
Gibson J.
10/4/97
9 pp.
Application for summary judgment in patent infringement action on ground claim 1 broader than any invention made or disclosed-Two preliminary issues: whether defendant can rely on transcript of examination for discovery of inventor/assignor; whether can rely on supplementary affidavit of defendant's expert as relating to corresponding foreign patents, file wrappers-Federal Court Rules, R. 494(9) permitting party at trial to use examination for discovery of another party as evidence against other party-By inference examination for discovery of inventor, who was not party to action, could not be used at trial by defendant as evidence against plaintiffs-Inappropriate to allow defendant to rely on evidence on motion for summary judgment, whether or not "other evidence" within meaning of RR. 432.1, 432.2, that not entitled to rely on at trial-Defendant cannot rely on foreign patents, filewrappers: Amfac Foods Inc. v. Irving Pulp & Paper Ltd. (1984), 83 C.P.R. (2d) 59 (F.C.T.D.); affd (1986), 12 C.P.R. (3d) 193 (F.C.A.)-As to main issue of whether summary judgment should issue in favour of defendant, although "what is invention" question of construction, expert opinion contradictory-As in Hayden Manufacturing Co. v. Canplas Industries (1996), 68 C.P.R. (3d) 186 (F.C.T.D.), clearly case where credibility of expert evidence should be tested through viva voce testimony and cross-examination thereon-Application dismissed-Federal Court Rules, C.R.C., c. 663, RR. 432.1 (as enacted by SOR/94-41, s. 5), 432.2 (as enacted idem), 494(9) (as am. by SOR/90-846, s. 21).