Date: 20060901
Docket: T-2270-00
Citation:
2006 FC 1038
Ottawa, Ontario, the 1st day of September 2006
Present:
Mr. Justice Beaudry
BETWEEN:
CHARLES D. MACLENNAN and
QUADCO EQUIPMENT INC.
Plaintiffs
and
GILBERT
TECH INC.
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
response to the appeal filed by the plaintiffs from my decision of December 6,
2004, the Court of Appeal made the following decision (2006 FCA 204) on May 31, 2006:
… the
appeal must be allowed, the decision on infringement by inducement must be set
aside and the matter returned to the judge below for redetermination, according
to the applicable legal test and the file before him.
[2]
The
plaintiffs’ allegations regarding infringement by inducement by the defendant
are as follows (excerpted from [TRANSLATION] Written submissions of the
plaintiffs at trial, Interpretation of claims / Analysis of infringement, document No.
40, filed on September 15, 2004):
[TRANSLATION]
Combination No. 2: GILBERT round back
tooth and GILBERT flat back adapter in combination with QUADCO tooth holder
239.
Gilbert Tech
manufactures and markets the GILBERT round back tooth with flat back adapter
(“GILBERT flat back adapter”), which it induces consumers to install on QUADCO
tooth holders (referred to collectively as “combination No. 2”) (Fig. 16) when
a QUADCO tooth has to be replaced.
FIG. 16 COMBINATION NO. 2: GILBERT ROUND BACK
TOOTH WITH FLAT BACK ADAPTER ON QUADCO TOOTH HOLDER (EXHIBITS P-104 AND P-105)
- Exhibits P-32, P-33, P-101, P-104 and
P-105 (GILBERT flat back adapter)
- Exhibit P-18 (QUADCO tooth holder)
240.
The
assembly of the GILBERT round back tooth with GILBERT flat back adapter results
in a flat back tooth with integrated bushing.
241.
Gilbert
Tech sells its GILBERT round back tooth and GILBERT flat back adapter as a
replacement kit for installation on a QUADCO tooth holder when a QUADCO tooth has
to be replaced.
242.
Mr.
Taillon admitted in the relevant portions of his examination for discovery,
which were read at trial, that Gilbert Tech’s intention was to sell the GILBERT
round back tooth by inducing consumers to install it on QUADCO tooth holders
using the GILBERT flat back adapter:
378 A What we want is to sell
Gilbert teeth on Quadco blades, on Quadco saws. This means that if you want to
attach a Gilbert tooth to a Quadco holder, you need an adapter to take the
tooth.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (Q. 378) (Exhibit P-167)
243.
In its
advertising brochures (Exhibits P-73 and P-105) and on its web site (Exhibit
P-74), Gilbert Tech gives the necessary instructions for combining the GILBERT
round back tooth and GILBERT flat back adapter on a QUADCO tooth holder.
3. Combination No. 3: GILBERT
flat back teeth with integrated bushing in combination with a QUADCO tooth
holder
244.
Gilbert
Tech manufactures and markets a series of flat back teeth with integrated
bushing (“ GILBERT flat back teeth with integrated bushing”) that it
induces consumers to install on QUADCO tooth holders (referred to collectively as
“combination No. 3”) (Fig. 17) when a QUADCO tooth has to be replaced.
FIG. 17 COMBINATION NO. 3: GILBERT FLAT BACK
TOOTH WITH INTEGRATED BUSHING (LEFT) ON QUADCO TOOTH HOLDER (RIGHT)
- Exhibits P-27 TO P-31 (GILBERT flat
back teeth with integrated bushing)
- Exhibit P-18D (QUADCO tooth holder)
245.
Gilbert
Tech manufactures and markets GILBERT flat back teeth with integrated bushing as a replacement kit for
installation on QUADCO tooth holders when a QUADCO tooth has to be replaced.
246.
GILBERT
flat back teeth with integrated bushing are similar to the QUADCO teeth that
they are used to replace. In the price list for GILBERT teeth (Exhibit P-121) given
to customers, there is an equivalency table identifying which QUADCO teeth the GILBERT
teeth correspond to.
247.
Mr. Taillon
admitted, in the relevant parts of his examination for discovery, which were
read at trial, that purchasers are well aware that the GILBERT flat back teeth
with integrated bushing are intended for installation on QUADCO tooth holders to
replace QUADCO teeth:
[TRANSLATION]
458 Q When you sell your
teeth, not the GILBERT tooth but the others that can fit on Quadcos, on Quadco
holders, with or without adapter, it doesn’t matter.
…
459 Q No, but I want to say:
is there a little instruction booklet, something like that?
A (Negative).
460 Q No?
A Nothing at all,
except the price list we had just now.
461 Q So the guys who buy it,
they know what to do with it?
A Ah, it’s…
462 Q It’s clear to them?
A It’s clear.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (pp. 119-120, Q. 458 to 462)
(Exhibit P-167)
4. Combination No. 4: GILBERT
flat back teeth with assembled bushing in combination with a QUADCO tooth
holder
248.
Gilbert
Tech manufactures and markets a series of flat back teeth with assembled
bushing (“GILBERT teeth
with integrated bushing” which it induces consumers to install on QUADCO tooth
holders (referred to collectively as “combination No. 4”) (Fig. 18) when a QUADCO
tooth has to be replaced.
FIG. 18 COMBINATION NO. 4: GILBERT FLAT BACK
TOOTH WITH ASSEMBLED BUSHING (LEFT) ON QUADCO TOOTH HOLDER (RIGHT)
- Exhibits P-21, P-22, P-23 and P-164 (GILBERT
flat back teeth with assembled bushing)
- Exhibit P-18D (QUADCO tooth holder)
249.
Gilbert
Tech manufactures and markets GILBERT flat back teeth with assembled
bushing as a replacement kit for installation on QUADCO tooth holders when a QUADCO tooth has
to be replaced.
250.
GILBERT flat
back teeth with assembled bushing are similar to the QUADCO teeth that they are
used to replace. In the price list for GILBERT teeth (Exhibit P-121) given to
customers, there is an equivalency table identifying which QUADCO teeth the GILBERT
teeth correspond to.
251.
Mr. Taillon
admitted in the relevant portions of his examination for discovery, which were
read at trial, that purchasers are well aware that the GILBERT flat back teeth
with assembled bushing are intended for installation on QUADCO tooth holders to
replace QUADCO teeth.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (pp. 119-120, Q. 458 to
462) (Exhibit P-167)
5. Combination No. 5: GILBERT
flat back teeth without bushing in combination with a QUADCO tooth holder
252.
Gilbert
Tech manufactures and markets a series of flat back teeth without bushing (“GILBERT
flat back teeth without bushing”)
which it induces consumers to install on QUADCO tooth holders (referred to
collectively as “combination No. 5”) (Fig. 19) when a QUADCO tooth has to be
replaced.
FIG. 19 COMBINATION NO. 5: GILBERT FLAT BACK
TOOTH WITHOUT BUSHING (LEFT) ON QUADCO TOOTH HOLDER (RIGHT)
- Exhibits P-24, P-25, P-26 and P-153 (GILBERT
flat back teeth without bushing)
- Exhibit P-18A (QUADCO tooth holder)
253.
A larger
bolt serves as the bushing.
254.
Gilbert
Tech manufactures and markets GILBERT flat back teeth without bushing as a replacement kit for
installation on QUADCO tooth holders when a QUADCO tooth has to be replaced.
255.
GILBERT flat
back teeth without bushing are similar to the QUADCO teeth they are used to
replace. In the price list for GILBERT teeth (Exhibit P-121) given to
customers, there is an equivalency table identifying which QUADCO teeth the GILBERT
teeth correspond to.
256.
Mr. Taillon
admitted in the relevant portions of his examination for discovery, which were
read at trial, that purchasers are well aware that the GILBERT flat back teeth
without bushing are intended for installation on QUADCO tooth holders to
replace QUADCO teeth.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (pp. 119-120, Q. 458 to 462)
(Exhibit P-167)
(boldface in the
original)
[3]
The
plaintiffs’ argument regarding inducement to infringe is set out in paragraphs 262,
263 and 264 of that document.
[TRANSLATION]
262. “A person who induces
or procures another to infringe a patent is itself responsible for infringement
of the patent.”
- AB Hassle v. Canada (Minister of Health and
Welfare) (2002), 22 C.P.R. (4th) 1 (F.C.A.) at p. 7
263. Contributory
infringement consists of knowingly inducing another person (the direct
infringer) to commit an act of infringement.
264.
A
three-pronged test must be applied:
Each of the following elements
must be proved:
(a)
that the
act of infringement was completed by the direct infringer;
(b)
completion
of the act of infringement was influenced by the seller, to the point where
without said influence, infringement by the buyer would not otherwise take
place;
(c)
the
influence must knowingly be exercised by the seller, such that the seller knows
that his influence will result in the completion of the act of infringement.
- AB Hassle v. Canada (Minister of Health and
Welfare), (2002) 22 C.P.R. (4th) 1 (C.F.A.) at p. 7
See also:
- Dableh v. Ontario Hydro (1996), 68 C.P.R. (3d)
129 (F.C.A.) at pp. 148-149
-
Slater
Steel Industries Ltd. v. R. Payer Co. Ltd. (1968), 55 C.P.R. 61 (Exch. Ct.) at p. 83 (Jackett J.)
-
Warner-Lambert
Co. v. Wilkinson Sword Canada Inc. (1988), 19 C.P.R. (3d) 402 (F.C.T.D..) at
p. 407 (Jerome J.)
(emphasis
in the original)
[4]
With
respect to combination No. 2, the plaintiffs allege that this combination
infringes claims 1 and 5 of the MACLENNAN patent. The Court quotes paragraphs
298, 299, 300 and 301 of the plaintiffs’ written submissions at trial.
[TRANSLATION]
298. This is contributory
infringement in that Gilbert Tech manufactures and sells the GILBERT round back
tooth with GILBERT flat back adapter, and induces consumers to install them on QUADCO
tooth holders.
299. By using the resulting
combination, customers of Gilbert Tech are committing an act of direct
infringement.
300. Action is not generally brought
against direct infringers because they can be numerous and difficult to
identify; they may be potential customers of the plaintiff; and an injunction
against them would be ineffective because others would take their places if the
instigator were not stopped.
[TRANSLATION]
[T]he patentee is often reluctant to sue
the primary infringer who uses the combination in that such user is a good
customer of the patentee.
-
Slater
Steel Industries Ltd. v. R. Payer Co. Ltd., (1968) 55 C.P.R. 61 (Exch. Ct.) at p. 63 (editor’s comment
on decision)
301.
The
plaintiff seeks to hold Gilbert Tech liable for contributory infringement.
[5]
The
plaintiff adds that in the defendant’s advertising brochure it induces
consumers to combine the GILBERT round back tooth with a QUADCO tooth holder using
the GILBERT flat back adapter (paragraphs 313 to 317):
[TRANSLATION]
313. In its advertising brochure,
Gilbert Tech induces consumers to combine the GILBERT round back tooth with a QUADCO
tooth holder using the GILBERT flat back adapter:
FIG. 25 BROCHURE PUBLICITAIRE DE GILBERT TECH (EXHIBIT
P-73)
See also the English-language Gilbert
Tech brochure:
FIG. 26 GILBERT TECH ADVERTISING BROCHURE (EXHIBIT P-105)
314. Mr. Taillon admitted in
the relevant portions of his examination for discovery, which were read at
trial, that this advertising was intended for owners of QUADCO tooth holders:
[TRANSLATION]
74 Q You advertise it how, to
what target buyers, this product?
A To owners of Quadco
saws.
75 Q Quadco saws and Quadco
holders?
A And Quadco holders.
…
77 Q And you have been advertising
it in your brochures, in your pamphlets, since when?
A Intensively
advertised since mid-1999.
…
88 Q So here, we have on
what I am going to call page 2, although it does not have a number, it seems to
be the back:
“Universal tooth
that can be mounted on adapters for use on Quadco and Koehring saws”.
Is that what we’re
talking about?
A That is what we’re
talking about
89 Q “Front bolted tooth
and adapter.”
A I like the term
used, which is “adapter”. That means that it is really an intermediate part to
adapt the GILBERT tooth for the standard holder.
90 Q And we see the drawing
here: “Segment for Quadco, Koehring saws”?
A That’s right.
91 Q So this, you sell it
as a package?
A We do not sell the
segment, in other words the Quadco holder or the Koehring holder, that we do
not sell. We sell the adapter and the tooth.
-
Examination
for discovery of Mr. Taillon, June 12, 2001 (Q. 74-75, 77, 88 to 92) (Exhibit
P-167)
315. In the price list for
GILBERT teeth given to customers, there is an equivalency table identifying the
QUADCO teeth, by model number, that are to be replaced by the GILBERT tooth and
adapter.
FIG. 27 PRICE LIST FOR GILBERT TEETH (EXHIBIT
P-121)
316. Were it not for this
influence, owners of QUADCO tooth holders would have no alternative but to
purchase replacement teeth from the patent holder, Quadco.
ii. Knowledge by Gilbert
Tech that its influence would result in use of combination No. 2
317. Gilbert Tech is well
aware that purchasers of its GILBERT round back tooth with its GILBERT flat
back adapter install those parts on QUADCO tooth holders. That is the admitted
goal of Gilbert Tech:
378 Q That is what we want,
is to sell GILBERT teeth for Quadco blades, for Quadco saws. That means that if
you want to attach a GILBERT tooth to the saw, to the Quadco holder, you need
an adapter to take the tooth.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (Q. 378) (Exhibit P-167)
(boldface in the original)
[6]
With
respect to combination No. 3, the Court notes the allegations made by the
plaintiffs in paragraphs 318 to 321 and the argument concerning infringement by
inducement (paragraphs 325 to 328):
[TRANSLATION]
3. Combination No. 3
vs. claims 1, 4 and 5 in the MACLENNAN patent
318. Combination No. 3 infringes
claims 1, 4 and 5 in the MACLENNAN patent.
319. Gilbert Tech manufactures
and sells GILBERT flat back teeth with integrated bushing, and induces
purchasers to combine them with QUADCO tooth holders.
320. By using the
resulting combination, customers of Gilbert Tech are committing an act of
direct infringement.
321. The plaintiff seeks
to hold Gilbert Tech liable for contributory infringement.
…
b. Contributory
infringement
i. Influence
of Gilbert Tech
325. In the price list for
GILBERT teeth given to customers, there is an equivalency table identifying the
QUADCO teeth, by model number, that are to be replaced by GILBERT flat back
teeth with integrated bushing.
FIG. 28 PRICE LIST FOR GILBERT TEETH (EXHIBIT
P-121)
ii.
Knowledge
by Gilbert Tech that its influence would result in use of combination No. 3
326.
No other
influence by Gilbert Tech is required.
327.
Purchasers
are well aware that GILBERT flat back teeth with integrated bushing are
intended for installation on QUADCO tooth holders to replace the corresponding
QUADCO teeth.
458 Q When you sell your
teeth, not the GILBERT tooth but the others that can fit on Quadcos, on Quadco
holders, with or without adapter, it doesn’t matter.
…
459 Q No, but I mean: is
there a little instruction booklet, something like that?
A (Negative).
460 Q No?
A Nothing at all,
except the price list we had just now.
461 Q So the guys who buy it,
they know what to do with it?
A Ah, it’s…
462 Q It’s clear to them?
A It’s clear.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (Q. 458 to 462) (Exhibit
P-167)
328. Gilbert Tech is well
aware that this is what its customers are doing. It is counting on it.
(boldface in the original)
[7]
With
respect to combination No. 4, the Court quotes the allegations made by the
plaintiffs in paragraphs 329 to 332 and the plaintiffs’ arguments regarding
infringement by inducement (paragraphs 340 to 347):
[TRANSLATION]
4. Combination No. 4
vs. claims 2, 4 and 5 in the MACLENNAN patent
329. Combination No. 4 infringes
claims 2, 4 and 5 in the MACLENNAN patent.
330. Gilbert Tech manufactures
and sells GILBERT flat back teeth with assembled bushing, and induces
purchasers to combine them with QUADCO tooth holders.
331. By using the
resulting combination, customers of Gilbert Tech are committing an act of
direct infringement.
332.
The
plaintiff seeks to hold Gilbert Tech liable for contributory infringement.
…
b. Contributory
infringement
i. Influence
of Gilbert Tech
340. In the price list for
GILBERT teeth given to customers, there is an equivalency table identifying the
QUADCO teeth, by model number, to be replaced by GILBERT flat back teeth with assembled
bushing:
FIG. 30 PRICE LIST FOR GILBERT TEETH (EXHIBIT
P-121)
ii.
Knowledge
by Gilbert Tech that its influence would result in the use of combination No. 4
341. No other influence by
Gilbert Tech is
required.
342. Purchasers are well
aware that GILBERT flat back teeth with assembled bushing are intended for
installation on QUADCO tooth holders to replace the corresponding QUADCO teeth.
458 Q When you sell your
teeth, not the GILBERT tooth but the others that can fit on Quadcos, on Quadco
holders, with or without adapter, it doesn’t matter.
…
459 Q No, but I mean: is
there a little instruction booklet, something like that?
A (Negative).
…
460 Q No?
A Nothing at all,
except the price list we had just now.
461 Q So the guys who buy it,
they know what to do with it?
A Ah, it’s…
462 Q It’s clear to them?
A It’s clear.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (Q. 458 to 462) (Exhibit
P-167)
343. And Gilbert Tech knows
that this is what its customers are doing.
(boldface in the
original)
[8]
With
respect to combination No. 5, the Court reproduces the allegations made in
paragraphs 344 to 347 and the argument regarding infringement by inducement
(paragraphs 357 to 360):
[TRANSLATION]
5. Combination No. 5
vs. claims 2, 3, 4 and 5 in the MACLENNAN patent
344. Combination No. 5 infringes
claims 2, 3, 4 and 5 in the MACLENNAN patent.
345. Gilbert Tech manufactures
and sells GILBERT flat back teeth without bushing, and induces purchasers to
combine them with QUADCO tooth holders.
346. By using the
resulting combination, customers of Gilbert Tech are committing an act of
direct infringement.
347. The plaintiff seeks
to hold Gilbert Tech liable for contributory infringement.
…
b. Contributory
infringement
i. Influence
of Gilbert Tech
357. In the price list for
GILBERT teeth given to customers, there is an equivalency table identifying the
QUADCO teeth, by model number, that are to be replaced by GILBERT flat back
teeth without bushing:
FIG. 32 PRICE LIST FOR GILBERT TEETH (EXHIBIT
P-121)
ii.
Knowledge
by Gilbert Tech that its influence would result in the use of combination No. 5
358. No other influence by
Gilbert Tech is
required.
359. Purchasers are well
aware that GILBERT flat back teeth without bushing are intended for
installation on QUADCO tooth holders to replace the corresponding QUADCO teeth.
458 Q When you sell your
teeth, not the GILBERT tooth but the others that can fit on Quadcos, on Quadco
holders, with or without adapter, it doesn’t matter.
…
459 Q No, but I mean: is
there a little instruction booklet, something like that?
A (Negative).
460 Q No?
A Nothing at all,
except the price list we had just now.
461 Q So the guys who buy it,
they know what to do with it?
A Ah, it’s…
462 Q It’s clear to them?
A It’s clear.
-
Examination
for discovery of Mr. Taillon, October 30, 2003 (Q. 458 to 462) (Exhibit
P-167)
360. And Gilbert Tech is well
aware that this is what its customers are doing.
(boldface in the
original)
[9]
The
defendant submits that it should not be held liable for infringement by
inducement. The relevant paragraphs of the amended defence are paragraphs 8,
10, 11(a) and 11(b) (Amended Defence and Cross-Demand, filed on December 10, 2003).
[10]
The
defendant’s key arguments are set out in its summary of the facts and law
(filed on September 16, 2004), at paragraphs 64 to 66 (pages 19 and 20) and
paragraphs 150 to 153 (4.4 [TRANSLATION] “Infringement by inducement (“Procurement”)”),
at page 41 of that document):
64. The following is a brief
description of the four replacement teeth that the plaintiff attacks based on
alleged indirect infringement by what is called infringement by “inducement”:
(i) The GILBERT cylindrical back tooth
which cannot be abutted using the means of abutment on the QUADCO tooth
holder because of the roundness of the back. This tooth is sold with an adapter
by means of which it can be used by customers who own Quadco saws
equipped with a QUADCO tooth holder. (13b)
(ii) Gilbert also sells a frusto-pyramidal
tooth that contains a permanently attached shank. (13c)
(iii) There is also another frusto-pyramidal
GILBERT tooth that can take a detachable shank. (13d)
(iv) And there is the frusto-pyramidal GILBERT
tooth that does not have round edges. Rather, it has a V-shaped outline (“straight
edges”, as Mr. MacLennan put it). (13e)
65. The Plaintiff has also brought
action regarding the Morin patent 1,269,028 (Exhibit D-3) in relation to round
edge (not straight edge) GILBERT teeth sold without shanks, but with adapters,
i.e. tooth 13(b) above. It has also brought action regarding the
V-shaped tooth in patent 2,084,013 (Exhibit D-4), tooth 13(e).
66. Not only does Gilbert not
supply all components of the combination, but most of the products identified
in paragraphs 13(b), (c), (d) and (e) that are alleged to be indirect
infringements by inducement do not contain and cannot contain shanks as claimed
in the patent (whether movable or fixed at the head).
…
4.4 Infringement by
inducement (“Procurement”)
150. This brings us to the question
of infringement by inducement. With respect to indirect infringement, by which
it is alleged that a party is supplying the necessary components for
reproducing the invention patented by another person, it is plain from the case
law that each case turns on its facts.
151. On the other hand, generally
speaking, it is extremely rare for the Court to find that supplying replacement
parts amounts to infringement of a patent, unless it is the replacement part
itself that is covered by a claim. When the invention consists of a combination
of a series of components and the person who has purchased the combination
wishes to replace a component, that person is entitled to go to someone other
than the patentee for the replacement part. This is, in a way, a matter of
policy.
152. Moreover, the courts require
that the defendant have some degree of control or that there be an imbalance of
power with the purchaser of the parts of the final product claimed in the patent
held by the party bringing the action.
153. It is therefore difficult to
imagine how, by supplying a tooth or adapter to someone who has already
purchased a QUADCO tooth holder, the defendant Gilbert could be held liable
under the Patent Act for an alleged infringement. After all, patent ’788
does not protect the “teeth”; the purchaser bought the Quadco tooth holder,
the tooth holder is a part that is sold separately from the various models of
Quadco teeth and Quadco holds several patents on teeth alone: …
(boldface in the original)
ANALYSIS
[11]
In order
to succeed, the plaintiffs must prove each of the following elements:
(a) the act of
infringement was completed by the direct infringer;
(b) completion
of the act of infringement was influenced by the seller, to the point where
without said influence, infringement by the buyer would not otherwise take
place;
(c) the
influence was knowingly exercised by the seller, so that the seller knows that
his influence will result in the completion of the act of infringement (AB
Hassle v. Canada (Minister of National Health
and Welfare),
2002 FCA 421, [2002] F.C.J. No. 1533 (F.C.A.) (QL)).
[12]
After
re-examining the record, I am of the opinion that the plaintiffs have failed to
prove the first element; it will therefore not be necessary to analyze the
other two.
[13]
In
this case, by purchasing the patented Quadco combination, the forestry
companies can use the licence implied by that purchase to repair the components
(Harold G. Fox, Canadian Patent Law and Practice, 4th ed., Toronto, Carswell,
1969, page 301). A component of the combination may be replaced without
infringing the patent, as long as the replacement has become necessary as a
result of normal wear and tear on the combination (page 391 of that text).
[14]
The
evidence is that it is common in the course of the normal use of the Quadco
patented invention that damage occurs to the tooth itself, or to the tooth
holder, in cutting a tree near the ground or where there is contact with rocks.
These situations arise in the course of normal wear and tear on the Quadco
combination.
[15]
I
therefore find that forestry companies, purchasers of the defendants’ products,
may repair damaged components of the Quadco patented invention by inserting
GILBERT teeth into them without infringing the patent.
[16]
The
patent relates to a combination of saw teeth and a tooth holder for a circular
saw. In my humble opinion, the defendant is not selling to its purchasers, or supplying
them with, necessary components for reproducing the invention as patented. I
agree with the defendant’s assertion: [TRANSLATION] “when
Gilbert sells replacement products for Quadco products, it is not supplying a
tooth holder, it is supplying only teeth or teeth and adapters, depending on
the model”. The teeth themselves that are sold by the defendant have
characteristics that are different from the teeth sold and manufactured by Quadco.
[17]
The
Gilbert replacement parts are not equipped with a tooth holder. For example,
the cylindrical back tooth is sold with an adapter because it cannot be abutted
using the means of abutment on the QUADCO tooth holder. The patent does not
protect the teeth alone; it protects a combination of saw and tooth
holder; Quadco did not claim a saw tooth without a tooth holder or a tooth
holder without a saw tooth. In fact, the plaintiff Quadco holds a number of
patents on teeth alone.
[18]
The
plaintiffs have failed to discharge the burden of proof, on a balance of
probabilities, that they meet the first test of infringement by inducement,
that is, direct infringement by the defendant’s customers. The defendant
Gilbert therefore cannot be held liable for infringement by inducement.
JUDGMENT
THE
COURT ORDERS that:
1.
The action for infringement be dismissed.
“Michel
Beaudry”
Certified
true translation
Brian
McCordick, Translator
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