Bourgault Industries Ltd. v. Flexi-Coil Ltd.
A-125-98
Décary J.A.
3/3/99
16 pp.
Appeal from Trial Division decision ((1998), 80 C.P.R. (3d) 1) declaring Canadian Patent 1,227,863 (Patent _863) valid-Trial Judge finding appellant Flexi-Coil infringing Patent _863-Invention at issue relating to agricultural implement of type commonly described as "packer"-Packer utilized by farmers to compact soil over which packers roll during seed bed preparation or as otherwise required-Respondent Bourgault filing patent application on September 1, 1989-Patent _863 issued on December 18, 1990, entitled "Wing Packer"-Respondent alleging Flexi-Coil infringed claim 1 of Patent _863 by manufacture, sale of Flexi-Coil System 75-Flexi-Coil started developing Flexi-Coil 75 in May 1988, selling it in February 1989-Respondent forwarding cease and desist letter to Flexi-Coil dated February 13, 1991-First argument raised by appellant with respect to appropriateness of referring to extrinsic evidence when construing patent-Trial Judge not prepared to give any weight to specific paragraph in disclosure-Could not ignore said paragraph on basis it might not properly have been included in disclosure-Prior to considering issues of validity, infringement of patent, Trial Judge must determine appropriate construction, scope of claims of patent-Trial Judge properly stating law but went directly to issues of validity, infringement without first quoting, let alone construing claims at issue-Devoting attention to construction of patent according to legal principles, construing it in part explicitely, in part implicitely-Terms in parts e), f) of claim 1 referring to first axis, second axis, not third axis-Reference in disclosure to third axis in one, not illustrated embodiment not enough to read claim as encompassing third axis-Reference unexplained, at odds with rest of specification-Trial Judge properly construed parts e), f) of claim 1 as being restricted to two axes-Expression "ground-engaging" having no specific technical meaning in patent, used whether or not wheels, rollers in contact with ground, wheels have support function-Finding of Trial Judge right as to whether introduction of two-axis pivot obvious-Flexi-Coil alleging patent invalid by reason of lack of candour for failure of Bourgault, agent, to provide relevant prior art to Canadian Patent Office during processing of application for patent-Trial Judge dismissing argument based on Patent Act, s. 53(1) as finding "absolutely no evidence of an intention to mislead by anyone in this case"-Finding unassailable-Trial Judge finding infringement-Alleged infringement with respect to manufacture, sale of machine, not use-As manufactured, sold, Flexi-Coil 75 infringed claim 1-That pressure-spring option kit available to any buyer of machine so that springs can be adjusted by user at latter's convenience not allowing manufacturer, seller to escape charge of infringement-Trial Judge, when finding Flexi-Coil "understood the liability" that attaches to production of infringing device, referring essentially to period occurring after forwarding of cease and desist letter-No basis for interfering with exercise by Trial Judge of discretion on issue of delay incurred prior to commencement of proceedings-Appeal dismissed-Patent Act, R.S.C., 1985, c. P-4, s. 53(1).