[1] Decorative mouldings adorn the exterior of buildings to provide aesthetic appeal. Those that are the subject matter of this action are used in conjunction with either an exterior wall cladding technology known as EIFS (exterior insulation finish systems) or with stucco exteriors. Most EIFS installations have the appearance of stucco. Although these mouldings have been used in Canada for many years, in the early 1990's they were still being manually coated. Canadian Patent No. 2,184,205 (the "Canamould Patent") describes and claims a method and device that allows for the industrial, high-volume production of pre-coated mouldings. The plaintiffs allege that the defendant constructed an automated high-volume machine for coating mouldings that infringed the Canamould Patent by using a machine and method that are covered by claims in the patent. The defendant denies that its machine infringes the plaintiffs' patent and says that the patent is invalid because of anticipation and obviousness.
BACKGROUND
[2] Decorative mouldings used in the construction industry typically have a flat surface on one side and a decorative surface on the other. The design, usually three-dimensional, is formed on the decorative portion of the moulding and the flat portion is configured to fit against a surface (wall, ceiling, building exterior and the like). The moulding is mounted to the surface so that the decorative portion or surface is exposed to view. The mounting is achieved by applying an adhesive to the flat portion or surface of the moulding and then pressing the glued surface to the wall, ceiling or building exterior. Interior mouldings, traditionally, were made of plaster or wood. Plaster mouldings are not compatible with some surfaces. Wooden mouldings are used on the exterior of buildings but are costly and may deteriorate over time when exposed to the elements. Exterior stucco finished mouldings are made of foam. Usually, the decorative surface of the foam moulding is covered with mesh and is then coated. As stated above, in the early 1990's the coating of these foam mouldings was done manually. The coated foam moulding is attached to the exterior wall of the building.
THE AGREED FACTS
[3] The parties submitted an agreed statement of facts that is attached to these reasons as "Schedule A". The facts are summarized here for ease of reference. Canadian Patent 2,184,205 (the "Original Canamould Patent") and Canadian Reissued Patent 2,184,205 (the "Reissued Canamould Patent") both list the plaintiff 888804 Ontario Limited (the numbered company) as
their owner. The plaintiff, Canamould Extrusions Inc. ("Canamould") manufactures and sells pre-coated decorative mouldings in Canada under a purported licence from the plaintiff numbered company. The defendant Driangle Inc. ("Driangle") was incorporated on June 18, 1997. Since at least 1998, and continuing to the present, Driangle has made and sold pre-coated decorative mouldings in Canada. Each of the parties has an office and place of business in, or in proximity to, Toronto, Ontario.
[4] For many years, decorative mouldings have been used and affixed to building exteriors to provide a decorative aspect to the buildings. A common inner component for these types of mouldings is a foam or expanded polystyrene (EPS). A fibreglass mesh is often applied to the foam core and then a coating is applied. Decorative mouldings are typically designed to allow adhesive to be applied to one surface to allow adhesion between an uncoated face of the moulding and the surface to which the shape is to be applied.
[5] The original application for the Canamould Patent was filed on August 27, 1996 and the patent issued on January 27, 1998, to the patentee numbered company. The Canamould Patent is for an invention entitled "Method and Apparatus for Manufacturing Decorative Mouldings" and names Ned Santarossa as the inventor. The claims of the Canamould Patent include a method of manufacturing decorative mouldings (claims 1-8) as well as a device used to manufacture such mouldings (claims 9-18). The original patent was reissued on September 7,1999, also to the numbered company. Claim 1 of the Original Canamould Patent was modified by the replacement of the term "cementatious [sic] liquid coating" with the term "liquid coating". The other claims remained the same as the original patent.
[6] Claim 1 of the Reissued Canamould Patent reads:
A method of manufacturing an elongate decorative moulding having a decorative surface, comprising the steps of:
(a) placing a flat surface of an elongate foam moulding core on an input portion of a flat elongate table, the foam core comprising a flexible resilient expanded polymer foam solid having: said flat surface on one side; a decorative surface on another side and a cross-sectional profile, the cross-sectional profile of the core being proportionally smaller than the desired cross-sectional profile of the finished decorative moulding, the table including a smooth continuous planar top surface and a longitudinal axis;
(b) aligning the foam core on said longitudinal axis of the table;
(c) sliding the foam core on the top surface of the table forwardly along the axis through a coating containment chamber, the coating chamber: having a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a die, the die having a die opening with a profile proportionally larger than the cross-sectional profile of the moulding core, the die opening having a profile conforming a desired cross-sectional profile;
(d) applying a liquid coating material to the decorative surface of the moulding core as the foam core slides through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material;
(e) passing the coated moulding core through the die opening on to an output portion of the table top surface; and
(f) curing the coating material after the moulding has passed the die.
[7] Claim 9 of the Reissued Canamould Patent reads:
A device manufacturing an elongate moulding having a flat surface on one side, a decorative surface on another side and a cross-sectional profile, the device comprising: table means, having a smooth continuous elongate planar top surface, a longitudinal axis, an input portion, a midportion and an output portion, for supporting a flexible foam moulding core on said flat surface thereof as the core slides along the longitudinal axis; alignment means, on said input portion, for aligning the foam core on the longitudinal axis; a first coating containment chamber on said midportion having: a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a first die, the first die having a die opening with a profile proportionally larger than the cross-sectional profile of the moulding core, the die opening having a profile conforming a desired cross-sectional profile; and driving means for driving the foam core through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material, and for passing the first coated core through the first die opening onto the output portion of the table top surface.
[8] Driangle manufactures decorative mouldings by:
(a) using a foam core which has a cross-sectional profile which is proportionally smaller than the cross-sectional profile of the finished shape;
(b) securing a reinforcing mesh to the decorative surface of the foam core prior to coating;
(c) passing the mesh covered architectural shape through a coating containment chamber which has a rearward opening larger than the core profile, sidewalls and a forward wall which includes a die;
(d) using a die which is a removable plate and has a die opening with a profile proportionally larger than the cross-sectional profile of the foam core. The die opening has a profile conforming a desired cross-sectional profile for the pre-coated decorative moulding, and
(e) curing the coating material after the moulding has passed the die.
[9] It is known by those skilled in the art that several different types of coating materials can be used in the coating chamber for making pre-coated architectural shapes, as long as the coating cures to a fine smooth finish that is visually appealing.
[10] Driangle's first commercial sale of a pre-coated decorative moulding, produced by the method and device described above, occurred on March 17, 1998. Driangle continues to make use of the method and device.
THE POSITION OF THE PARTIES
[11] The plaintiffs' position may be succinctly stated. Ned Santarossa developed an automated system that allows for the industrial, high-volume production of pre-coated foam core mouldings. His work resulted in the Canamould Patent that describes and claims a method and a device with respect to Mr. Santarossa's invention. Prior art devices and methods for pre-coating decorative mouldings had not been automated and did not coat decorative mouldings by moving them through a chamber as did the Canamould Patent method. To go from the prior art to the new Canamould method and device required imagination on the part of the inventor.
[12] Mr. Santarossa assigned his rights in the Canamould Patent to the numbered company and it, in turn, licensed Canamould to practise the invention.
[13] Vic Nonis is a principal of Lido Wall Systems ("Lido"), a large stucco contractor in the Toronto area. Lido used Canamould pre-coated decorative mouldings on its job sites. After using Canamould's mouldings, Mr. Nonis approached Mr. Angelo Rao with the idea of forming a new company to produce pre-coated decorative mouldings. In June, 1997, Vic Nonis and Angelo Rao formed Driangle to mass produce pre-coated decorative mouldings. Driangle obtained a copy of the application for the Canamould Patent in June, 1997. In January, 1998, Driangle built its first prototype machine. Driangle's first commercial sale of a pre-coated decorative moulding was to Lido. Driangle produced pre-coated mouldings with very similar, if not identical, profiles to those sold by Canamould. Driangle is Canamould's primary competitor. The plaintiffs allege that, when compared against the Canamould Patent claims, the Driangle device and method contain all the elements of the claims and the Driangle device and method infringe the Canamould Patent.
[14] The defendant's position, briefly stated, is that in the spring of 1997, Mr. Rao was asked to undertake an analysis to consider setting up a manufacturing plant to mass produce coated decorative mouldings. The investigation revealed a business opportunity. The EIFS system, already in use on large or expensive homes, could also be applied to every day homes. In light of this opportunity, Mr. Rao formed Driangle and designed machinery to produce coated decorative mouldings. This machinery was designed using standard machine building techniques. Mr. Rao was not the only one to recognize this business opportunity. Mr. Santarossa did as well. Like Mr. Rao, Mr. Santarossa designed machinery and was granted patent protection for his design.
[15] The defendant maintains that Mr. Santarossa did not assign his rights in and to his patent until August 26, 1996, more than two years after the November 15, 1993 agreement between the numbered company and Canamould was executed. Since the November 15, 1993 agreement is the only license between the plaintiffs, Canamould is not a proper party to this action.
[16] The Driangle device is materially different from the device described and claimed in the patent and does not infringe any of the asserted claims. The method and device described and claimed in the patent, as of the claim date, was reasonably predictable and was a logical design progression from the existing art. There were a limited number of options to accomplish the intended result, and the patent shows one of the options that a person would try. The method and device disclosed in the patent is obvious and therefore the asserted claims are invalid. No valid claim of the patent is infringed.
THE ISSUES
[17] There are four issues to be determined:
1. Is Canamould entitled to claim under the Canamould Patent as a licensee?
2. What is the proper construction to be given to the claims that the plaintiffs allege to be infringed by Driangle, i.e., claims 1, 2, 3, 6, 9, 10, 11, 14, 16 and 17 of the Canamould Patent?
3. Are the method and the device by Driangle in its manufacture of decorative mouldings within the scope of one or more of claims 1, 2, 3, 6, 9, 10, 11, 14, 16 and 17 of the Canamould Patent as construed by the court?
4. Are either of the Original or Reissued Canamould Patents invalid as being anticipated or obvious in view of the common general knowledge (including the Dryvit push box as disclosed in the defendant's document 15 dated August 20, 1980) and the prior patents available or filed in Canada at the claim date, August 28, 1995?
THE EVIDENCE
[18] Ned Santarossa is the chief executive officer of Canamould and the general manager of the numbered company. In 1984, after being employed in the area of computer operations, Mr. Santarossa began working in the construction industry as a general contractor. Although briefly involved in a venture with several partners, he focussed his efforts on his company, Walltech Plastering (Walltech), which applied stucco exteriors on houses and commercial premises. Walltech used the EIFS system.
[19] The foam shapes for the mouldings, used by Walltech, were supplied by the manufacturer and were ½ to 3 or 4 inches thick. On site, they would be cut at intervals and layered to create the decorative mouldings. Workers trowelled on a base coat, embedded a fibreglass mesh and then trowelled on a smooth finish. Mr. Santarossa found the on-site production of the mouldings to be very costly and he began to search for other options. In 1993, he learned of Giotto, a company that pre-coated foam shapes by placing the moulding on a table and moving a box, with a die, over the top of the moulding several times. Walltech purchased pre-coated mouldings from Giotto but Mr. Santarossa found them rough, heavy and cumbersome. He viewed the concept as a good one and believed that the solution lay in automation and mass production. In this respect, he heard of Mr. Arnold Guettler, from Neoform Corp., who claimed to have a machine that pre-coated mouldings at a high rate of speed.
[20] Mr. Santarossa caused the numbered company to enter into a contract with Mr. Guettler for the supply of his machinery and technology. On November 30, 1993, the numbered company and Mr. Guettler executed a license agreement dated October 28, 1993. Mr. Guettler was to provide the equipment and the process specifications for the mass production of pre-coated foam shapes in November, 1993.
[21] Canamould was incorporated and on November 15, 1993, Canamould and the numbered company entered a license agreement whereby Canamould was licensed to utilize the process. Canamould leased 14,000 square feet for a term of 5 years to house the operation.
[22] Mr. Guettler did not deliver as promised. In the final analysis, the numbered company received nothing from him and was not successful in recovering its $30,000 payment to him. Mr. Santarossa nonetheless pursued the idea of automating the manufacture of pre-coated mouldings. Knowing the technology behind the push box he took matters into his own hands, designed an automated push box and contacted Clark Machine to manufacture it. The machine was ready for use in February, 1994, and was designed to move over a stationary foam. It incorporated an attachment to an arm that ran on a carriage, dies and a hopper. It did not work well. The coating was inconsistent, the alignment was off and multiple passes were required to coat the moulding. The product was rough, heavy, cumbersome and brittle. Most of it had to be discarded. A good day of production resulted in only 300 to 320 linear feet of usable mouldings.
[23] By April, Mr. Santarossa had disconnected the motor. He went back to the drawing board and began to re-design in an effort to eliminate the problems. This time, he went to Clark Machine with a plan for a stationary box. The new device was ready in July, 1994. Acrylic cement was poured into a coating box that had one die in the front and one die in the back. Two rollers at the head of the machine pushed the uncoated foam through the coating chamber. The belts lined up directly with the dies to produce the alignment. The foams were fed manually into the belts and the belts carried the foam to the first die where the foam was coated. The outside die scraped off excess coating. The dies were formed to the same cross-sectional dimension of the moulding. Outside the die, conveyor belts carried the coated foam down the table to be manually removed for drying. Adjustments were made during July and August, particularly to the belts, so that it became a conveyor system from beginning to end. The second machine produced much better results and the output was about 2,400 linear feet per day.
[24] Mr. Santarossa funded his invention by mortgaging his personal residence, using the Walltech income and obtaining government grants for technology and advancements in new products. He did not disclose to anyone. Clark Machine and all employees signed non-disclosure agreements. On August 28, 1995, he filed an application for a patent in the United States and on August 26, 1996, assigned all of his rights in the patent to the numbered company, effective July 28, 1995.
[25] The mouldings were very popular and enabled the EIFS industry to decorate the exterior of a home or building with great ease, comparatively speaking. The market reaction was positive. The pre-coated mouldings account for 92 to 95 percent of Canamould's market line and are sold predominantly in the United States and Canada but also in the United Kingdom, Japan, Hong Kong, the Caribbean, Russia and East Germany. An application for the Canamould Patent was filed in Canada on August 27, 1996, the patent was published on March 1, 1997, was issued on January 27, 1998 and was reissued on September 7, 1999, to the patentee numbered company.
[26] Angelo Rao is and has been the president of Driangle since its incorporation in 1997. Driangle is engaged in the design and manufacture of pre-coated architectural shapes used in the construction industry, employing the EIFS system. Mr. Rao is, by profession, a mechanical engineer. In 1994, after 10 years of employment in the design and manufacture of components for the automotive industry, he was contacted by KML Engineered Homes (KML), a manufacturer of pre-modular or pre-finished homes. His task was to convert the manufacturing process from a field to a factory process. It was in that context that he become acquainted with the EIFS system. Mr. Rao studied EIFS because it was relevant to his assignment at KML. He learned of decorative mouldings during that time.
[27] He also met Mr. Vic Nonis who was a principal of both KML and Lido. Mr. Nonis asked Mr. Rao to conduct an analysis with respect to setting up a plant to mass produce decorative mouldings. Mr. Rao felt that while EIFS was used for beautifying older homes, it was not being used for common, everyday homes. He identified the void as a business opportunity. He believed that while there existed companies such as Canamould, Plascrete and Design Mould, the bulk of the work was still being performed manually. He sensed that the time was right to invest in research that could develop a manufacturing facility to mass produce the moulds.
[28] Mr. Rao knew that Canamould had mechanized a process for pre-coating the moulds and he had seen the Canamould Patent. He then developed, with the assistance of others, a piece of equipment that would mass produce the product. While the Driangle machine is similar to the Canamould machine, Mr. Rao identified differences between them. The Driangle foam profile is notched through the surface and is aligned by means of a dovetail that runs the entire length of the process. The dovetail is the datum surface. There is a spiked belt that engages the foam. When the foam goes through the containment chamber, there is a well and the foam runs on two dams that act as wipers to eliminate material from the edges. The belt then pulls the product away after it is coated. The wipers, or dams, allow the coating to go beneath the surface of the moulding as it progresses through the chamber but prevent the coating from going underneath the moulding itself. The wipers also prevent material from collecting around the edges of the shape. The foam contacts the dam on the bottom surface and also on the side edge of the dam.
[29] The Driangle product is very similar to the Canamould product. The coating material may vary and the lower outside corners of the foam have less coating. The Driangle product has a system warranty, if installed on a Dryvit project. Pricing may vary, but in all other respects the products are, for all intents and purposes, the same.
THE LAW OF CLAIM CONSTRUCTION
[30] The companion decisions in Free World Trust v. Électro Santé Inc. (2000), 9 C.P.R. (4th) 168 (S.C.C.) (Free World Trust) and Whirlpool Corporation v. Camco Inc. (2000), 9 C.P.R. (4th) 129 (S.C.C.) (Whirlpool) delineate the principles to be applied in claim construction. Those principles are summarized in the paragraphs that follow.
[31] Patent construction is antecedent to issues of validity and infringement. The patent is to be construed as of the date of its publication. The Patent Act, R.S.C. 1985, c. P-4 (the Act) and purposive construction promote adherence to the claims and this in turn promotes fairness and predictability. The claims perform a public notice function by setting out the scope of the monopoly so that the public may know where it may go with impunity. The claim language must be read in an informed and purposive way. Claim interpretation is neither literal nor based on vague notions such as the "spirit of the invention". The more scope for searching for the "spirit of the invention" and the "pith and substance" of the invention, the less the claims can perform their public function. A patent falls within the definition of "regulation" in the Interpretation Act, R.S.C. 1985, c. I-21 and as such merits a construction that best assures attainment of its objects. The inventor's intention is manifested in the patent claims as interpreted by a person skilled in the art. The average person skilled in the particular art of the patent is not a grammarian or etymologist and does not indulge in a meticulous and verbal analysis.
[32] The content of a patent specification is regulated by section 27 of the Act. The disclosure is the quid provided by the inventor in exchange for the quo of the monopoly. An inventor is not obliged to claim a monopoly on everything new, ingenious and useful disclosed in the specification. The usual rule is that what is not claimed is considered disclaimed. Regard may be had to the specification to understand what is meant by a word in a claim, but not to enlarge or contract the scope of the claim as written and thus understood. The claims and the disclosure are construed with a mind willing to understand. The words chosen by the inventor will be read in the sense that the inventor intended and in a way that is sympathetic to the accomplishment of the inventor's purpose, expressed or implicit, in the text of the claims. If the inventor, however, has misspoken or otherwise created an unnecessary or troublesome limitation in the claims, it is a self-inflicted wound. The public is entitled to rely on the words used provided the words used are interpreted fairly and knowledgeably.
[33] As part of the informed and purposive construction of a claim, elements in the claim will be found to be essential or non-essential. There is no infringement if an essential element is different or omitted. There may still be infringement, however, if non-essential elements are substituted or omitted. An element in a claim will be considered non-essential and substitutable if either: (i) on a purposive construction of the words of the claim it was clearly not intended to be essential, or (ii) that at the date of publication of the patent, the skilled addressee would have appreciated that a particular element could be substituted without affecting the working of the invention i.e., had the skilled worker at that time been told of both the element specified in the claim and the variant and "asked whether the variant would obviously work in the same way", the answer would be yes.
[34] In Free World Trust, Binnie J. addressed the substitutability of elements as follows:
In this context, I think "work in the same way" should be taken for our purposes as meaning that the variant (or component) would perform substantially the same function in substantially the same way to obtain substantially the same result. In Improver [Corp. v. Remington Consumer Products Ltd., [1990] F.S.R. 181], Hoffman J. attempted to reduce the essence of the Catnic [Components Ltd. v. Hill and Smith Ltd., [1981] F.S.R. 60], analysis to a series of concise questions, at p. 182:
(i) Does the variant have a material effect upon the way the invention works? If yes, the variant is outside the claim. If no: -
(ii) Would this (i.e.: that the variant had no material effect) have been obvious at the date of publication of the patent to a reader skilled in the art? If no, the variant is outside the claim. If yes: -
(iii) Would the reader skilled in the art nevertheless have understood from the language of the claim that the patentee intended that strict compliance with the primary meaning was an essential requirement of the invention? If yes, the variant is outside the claim.
[35] While it would be unfair to permit a patent monopoly to be breached with impunity by a copycat device that simply switched bells and whistles to escape the literal claims of the patent, the onus is on the patentee to establish known and obvious substitutability at the date of publication. If the patentee fails to discharge that onus, the descriptive word or expression in the claim is to be considered essential unless the context of the claim language otherwise dictates. The claims cannot be stretched to allow a patentee to monopolize anything that achieves the desirable result.
[36] Claim construction is a matter of law. The task of construing a patent's claim lies within the exclusive domain of the trial judge: Dableh v. Ontario Hydro (1996), 68 C.P.R. (3d) 129 (F.C.A.). The general rule is that extrinsic evidence is inadmissible for the purpose of construing a patent specification, however, expert evidence may be admitted for the purpose of explaining the meaning of terms used and for determining what the common knowledge and state of the art was at the time of the patent: Free World Trust; Nekoosa Packaging Corp. v. United Dominion Industries Ltd. (1994), 56 C.P.R. (3d) 470 (F.C.A.); Apotex Inc. v. Janssen Pharmaceutical Inc. (2001), 13 C.P.R. (4th) 410 (F.C.A.); Airseal Controls Inc. v. M & I Heat Transfer Products Ltd. (1997), 77 C.P.R. (3d) 126 (F.C.A.).
THE CANAMOULD PATENT
[37] Both the plaintiff and the defendant called expert witnesses. The plaintiff's expert, Kevin Day, has considerable experience and expertise related to EIFS technology. This is not insignificant because there are no known manufacturers of pre-coated decorative mouldings not related to the stucco or EIFS industries. Mr. Day testified in a forthright manner but was somewhat over-zealous in his efforts to ensure that the patent be construed in a manner most favourable to the plaintiff's position. The defendant's expert, Sab Ravalli, has exceptional credentials but not in the area of the EIFS or stucco industries. While as a child and adolescent, he had hands-on experience assisting his craftsman father in the creation of interior plaster mouldings, he has no experience with decorative foam mouldings. His area of expertise is in the mechanization and automation of manufacturing processes at a highly sophisticated level. That is not to say that Mr. Ravalli's evidence was not of benefit. He was most impressive as a witness, but I was left with the distinct impression that he had difficulty relating to the knowledge level of a person skilled in the art with respect to the production of decorative mouldings. While both witnesses provided invaluable assistance, at the end of the day, it is the task of the court to construe the claims.
[38] Here, the independent claims are claims 1 and 9. Both have been reproduced at paragraphs 6 and 7 of these reasons. For ease of reference, I include them again here.
1. A method of manufacturing an elongate decorative moulding having a decorative surface, comprising the steps of:
(a) placing a flat surface of an elongate foam moulding core on an input portion of a flat elongate table, the foam core comprising a flexible resilient expanded polymer foam solid having: said flat surface on one side; a decorative surface on another side and a cross-sectional profile, the cross-sectional profile of the core being proportionally smaller than the desired cross-sectional profile of the finished decorative moulding, the table including a smooth continuous planar top surface and a longitudinal axis;
(b) aligning the foam core on said longitudinal axis of the table;
(c) sliding the foam core on the top surface of the table forwardly along the axis through a coating containment chamber, the coating chamber: having a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a die, the die having a die opening with a profile proportionally larger than the cross-sectional profile of the moulding core, the die opening having a profile conforming a desired cross-sectional profile;
(d) applying a liquid coating material to the decorative surface of the moulding core as the foam core slides through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material;
(e) passing the coated moulding core through the die opening on to an output portion of the table top surface; and
(f) curing the coating material after the moulding has passed the die.
9. A device manufacturing an elongate moulding having a flat surface on one side, a decorative surface on another side and a cross-sectional profile, the device comprising: table means, having a smooth continuous elongate planar top surface, a longitudinal axis, an input portion, a midportion and an output portion, for supporting a flexible foam moulding core on said flat surface thereof as the core slides along the longitudinal axis; alignment means, on said input portion, for aligning the foam core on the longitudinal axis; a first coating containment chamber on said midportion having: a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a first die, the first die having a die opening with a profile proportionally larger than the cross-sectional profile of the moulding core, the die opening having a profile conforming a desired cross-sectional profile; and driving means for driving the foam core through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material, and for passing the first coated core through the first die opening onto the output portion of the table top surface.
[39] Claim 1 describes the method for manufacturing elongate mouldings with a decorative surface and lists a series of steps that comprise this method. Claim 9 describes a device, specifically for the manufacture of an elongate moulding with a flat surface on one side and a decorative surface on the other side. It is a specific device for a specific product and has a series of different parts.
[40] The issue between the parties regarding the claim construction relates to the meaning to be ascribed to the surface of the table that is flat, smooth, continuous and planar. It is common ground that the words used in claim 9 may be considered to assist in the interpretation and construction of claim 1.
[41] Claim 1 (the method), construed, consists of placing the flat surface of the foam moulding on the flat surface of the table; aligning the moulding lengthwise; sliding the moulding through the coating containment chamber, the chamber having a bottom surface defined by the top surface of the table, a rearward opening larger than the core profile, side walls and a forward wall that includes a die with an opening that conforms to the cross sectional profile and is proportionally larger than the profile; applying a liquid coating material to the decorative surface of the moulding as it slides through the coating chamber, the flat surface of the core engaging the top surface of the table thus shielding the flat surface of the foam from the coating material; passing the coated moulding through the die opening of the output portion of the table then curing the coating material.
[42] Claim 9 (the device), construed, is for manufacturing a decorative moulding with a flat surface on one side, a decorative surface on another side and a cross sectional profile. The device is comprised of a table; an alignment means for aligning the foam core lengthwise on the table; a coating chamber such as that described in claim 1 and a driving means for moving the coated moulding through the coating chamber by mechanical means.
[43] The table in claim 9 is defined as "having a smooth continuous elongate planar top surface, a longitudinal axis, an input portion and an output portion, for supporting a flexible foam moulding core on said flat surface thereof as the core slides along the longitudinal axis". The construction to be given to the word "table" is a matter of debate.
[44] The defendant adopts a strictly literal approach and submits that the words "flat, smooth, continuous and planar" are common words that are readily understood and do not have a unique or particular meaning within the EIFS industry. The words apply to the table top. Projections and interruptions do not fall within the definition as stated. The reasonable and purposive construction of the words defining the table is that the table must be completely flat, smooth, continuous and planar.
[45] The plaintiff, on the other hand, relies on the expressed purpose of the table i.e., to support and shield the foam core as it slides on the surface. Understood with reference to the purpose of the claim, the plaintiff construes the descriptive words to mean a surface that is flat, planar and smooth for the sliding, shielding and supporting of the flexible foam core and is continuous so that there is no interruption of the motion of the foam and the supporting and shielding occurs throughout the motion of the foam core.
[46] In my view, the defendant's proposed construction is overly restrictive and the plaintiff's is too expansive. There are, in addition to the definition found in the claim, references in the disclosure that shed light on the intention of the inventor. The part of the disclosure that relates the invention to the figures (illustrations) contains the following passages:
In some cases it has been found necessary to use rollers to press down on the foam core to maintain contact with the table top, however where input conveyors have a rubber surface, the friction with the conveyor holds the foam core down . . .
The surface of the conveyor belts are rubber or other resilient frictional material to hold the core against the flat table surface and drive the core through the coating chamber.
[47] Additionally, there are statements in the claim regarding the chamber having a bottom surface defined by the top surface of the table and the application of the coating requirement that the flat surface of the moulding engages the top surface of the table. However, the description also refers to alignment pins that are shown in Figure 3 and the option of an outfeed conveyor located at the surface of the table.
[48] I conclude that the "table" construed in a purposive and contextual way is flat, smooth, continuous and planar, as those words are commonly understood, with respect to the portion of the table top that supports the foam core from the input portion of the table through to and including the exit of the foam core from the coating containment chamber. In other words, that portion of the table is uninterrupted. This construction applies equally to claims 1 and 9.
[49] The remaining claims are easily understood. As stated earlier, claims 2 through 8 are dependant upon claim 1 and claims 10 through 18 are dependant upon claim 9. The dependant claims are set out below. There is no issue with respect to claims 4, 5, 7, 8, 12, 13 and 18.
2. A method according to claim 1 wherein, the die opening is beveled [sic] expanding rearwardly, the opening in a rearward side of the die being proportionally larger than the opening in a forward side of the die.
3. A method according to claim 1 wherein, the die is a removable plate.
4. A method according to claim 1 wherein, the coating chamber has an open top.
5. A method according to claim 4 wherein, the step of applying the coating includes trowelling the coating onto the decorative surface of the foam core.
6. A method according to claim 1 wherein, prior to the step of placing the core on the table, the method includes the step of securing a reinforcing mesh to the decorative surface of the core.
7. A method according to claim 1 including the further steps of:
(g) sliding the first coated foam core on the top surface of the table forwardly along the axis through a second coating containment chamber, the second coating chamber; having a bottom surface defined by the top surface of the table; having a rearward opening larger than the first coated core profile; side walls and a forward wall which includes a second die, the second die having a second die opening with a profile proportionally larger than the cross sectional profile of the first coated moulding core, the second die opening having a profile conforming a desired cross sectional profile;
(h) applying a second liquid coating material to a cured first coated decorative surface of the moulding core as the foam core slides through a second coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from the second coating material;
(i) passing the second coated moulding core through a second die opening on to an output portion of the table top surface; and
(j) curing the second coating material after the moulding has passed the second die.
8. A method according to claim 1 including the further step of: sliding the coated foam core on the top surface of the table forwardly along the axis through a drying chamber, the drying chamber; having a bottom surface defined by the top surface of the table.
10. A device according to claim 9 wherein the die opening is beveled [sic] expanding rearwardly, the opening in a rearward side of the die being proportionally larger than the opening in a forward side of the die.
11. A device according to claim 9 wherein, the first die is a removable plate.
12. A device according to claim 9 wherein, the first coating chamber has an open top.
13. A device as defined in claim 9 further comprising a second coating chamber, on said midportion rearward of said first coating containment chamber, the second chamber having a bottom surface defined by the top surface of the table means; having a rearward opening larger than the first coated core profile; side walls and a forward wall which includes a second die, the second die having a second die opening with a profile proportionally larger than the cross sectional profile of the first coated moulding core, the second die opening having a profile conforming a desired cross sectional profile.
14. A device as defined in claim 9 wherein the driving means comprises a conveyor belt.
15. A device as defined in claim 14 wherein the conveyor belt has a resilient frictional surface.
16. A device as defined in claim 14 comprising an input conveyor belt with an associated input drive, and an independent output conveyor belt with an associated output drive.
17. A device as defined in claim 16 wherein the input and output drives each comprise gear drives.
18. A device as defined in claim 16 wherein the input and output drives each comprise chain drives.
[50] Guided by the law articulated in paragraphs 33 and 34 herein and having addressed the substitutability of elements in the manner delineated therein, I find that the essential elements of claim 1 are the table, an alignment and a coating containment chamber. The essential elements of claim 9 are the table, an alignment, a coating containment chamber and a driving means.
INFRINGEMENT
[51] Section 42 of the Act gives the holder of a patent the right to exclude others, for the term of the patent, from making, constructing or using the invention, or selling it to others to be used. This is a monopoly that Parliament gives an inventor for disclosing the invention to the public: Monsanto Canada Inc. v. Schmeiser (2002), 21 C.P.R. (4th) 1 (F.C.A.).
[52] After the claims are construed, infringement is determined by comparing the allegedly infringing article with the words of the claims. There is infringement if the article includes all the essential elements of at least one of the patent claims: Free World Trust. A mere finding of similarity is insufficient to support a finding of infringement. A machine, in broad terms, that is similar in purpose and nature to the apparatus described in the patent does not lead to a finding of infringement: Visx Inc. v. Nidek Co. (1999), 3 C.P.R. (4th) 417 (F.C.T.D.) aff'd (2001) 16 C.P.R. (4th) 251 (F.C.A.). The task of determining whether a claim has been infringed becomes "essentially one of fact": TRW Inc. v. Walbar of Canada Inc. (1991), 39 C.P.R. (3d) 176 (F.C.A.).
[53] The significant differences identified in the evidence between the Driangle table and the Canamould table are the dovetail shaped rail placed longitudinally through the centre of the table, the spike belt used in combination with the dovetail to move the mouldings along the table, the trough and the wipers or dams in the midportion of the tabletop, the water wells in the output portion of the table and the further spike belt on the output portion of the table. In my view, the issue of infringement can be determined solely on the basis of the trough and wipers. The bottom surface of the coating containment chamber in the Driangle device is not defined by the top of the table. There is a well or trough underneath. The trough operates in conjunction with two dams or wipers that are placed at the bottom of the coating containment chamber. As the foam core moves through the coating chamber, it moves over the top of the wipers or dams. The foam core is supported by the wipers or dams on its path through the coating chamber and the wipers and trough shield the flat surface of the foam from the coating material. Given the construction of the word "table" contained in paragraph 48, the Driangle table does not infringe an essential element of either claim 1 or claim 9. Since there is no infringement of these claims, there can be no infringement of the dependant claims 2, 3, 6, 10, 11, 14, 15, 16 and 17. Because this finding is dispositive with respect to the issue of infringement, I refrain from expressing any opinion as to whether the dovetail and spike belts are merely "bells and whistles".
VALIDITY
[54] The defendant, in its statement of defence, denies infringement and additionally alleges that the Canamould Patent is invalid due to anticipation and obviousness. By way of counter-claim, Driangle seeks a declaration that the Canamould Patent and its reissue and each and every one of the asserted claims are invalid.
[55] Although there are six prior art references, only two were relied upon: German Disclosure 29 04 326 (August 9, 1979) referred to throughout as the Reiger Patent, and the Dryvit push box as disclosed in a document dated August 20, 1980. The Reiger Patent discloses coating a foam core to make a decorative moulding by movement of a die along the longitudinal axis of the foam core. The method employed is similar to the methods of applying traditional plaster finishes, in situ, with a cut profile moved across the surface of wet plaster. The device is used manually and requires multiple passes of the die across the foam core. The Dryvit push box document discloses a "push box" for the application of adhesive to insulation boards forming part of an EIFS application. The foam boards are manually pushed under a plate to enable ribbons of adhesive to be applied to the side of the boards that are ultimately affixed to a wall as part of an EIFS installation.
[56] An issued, subsisting Canadian Patent is, in the absence of evidence to the contrary, presumed to be valid pursuant to subsection 43(2) of the Act. The statutory presumption of validity is weakly worded and adds little to the usual onus already resting on the attacking party: Apotex Inc. v. Wellcome Foundation Ltd. (2002), 21 C.P.R. (4th) 499 (S.C.C.).
[57] Paragraph 28.2(a) of the Act provides that a patent is invalid for anticipation where "the invention was disclosed to the public by a person other than the applicant or a person who obtained knowledge of the invention from the applicant, so that the invention became available to the public anywhere before the priority date (in this case August 28, 1995).
[58] In Free World Trust, the following statement was adopted:
One must, in effect, be able to look at a prior, single publication and find in it all the information which, for practical purposes, is needed to produce the claimed invention without the exercise of any inventive skill. The prior publication must contain so clear a direction that a skilled person reading and following it would in every case and without possibility of error be led to the claimed invention.
[59] Each document asserted to be an anticipation must be considered individually. The use of portions, from various documents, to form a mosaic is not permissible: Beloit Canada Inc. v. Valmet Oy (1986), 8 C.P.R. (3d) 289 (F.C.A.) (Beloit).
[60] Although the defendant pleaded anticipation, it did not argue it and the evidence, in any event, was consistent that there was neither an automated method, nor a method with a stationery chamber, for manufacturing pre-coated shapes prior to the Canamould Patent invention. The Canamould Patent is not invalid for anticipation.
[61] Section 28.3 of the Act provides that a claimed invention must not be obvious. This section codified the previously existing bar to patentability based on obviousness. The test for obviousness, prior to codification in the Act, has continued to be applied by the court: Baker Petrolite Corp. v. Canwell Enviro-Industries Ltd. (2001), 13 C.P.R. (4th) 193 (F.C.T.D.), rev'd on other grounds (2002), 17 C.P.R. (4th) 478 (F.C.A.); Norac Systems International Inc. v. Prairie Systems and Equipment Ltd. (2002), 19 C.P.R. (4th) 360 (F.C.T.D.); Pfizer Canada Inc. v. Apotex Inc., 2000 FCT 1138, [2002] F.C.J. No. 1540 (F.C.T.D.).
[62] In Beloit, the oft-repeated test was stated:
The test for obviousness is not to ask what competent inventors did or would have done to solve the problem. Inventors are by definition inventive. The classical touchstone for obviousness is the technician skilled in the art but having no scintilla of inventiveness or imagination; a paragon of deduction and dexterity, wholly devoid of intuition; a triumph of the left hemisphere over the right. The question to be asked is whether this mythical creature (the man on the Clapham omnibus of patent law) would, in the light of the state of the art and of common general knowledge as at the claimed date of invention, have come directly and without difficulty to the solution taught by the patent. It is a very difficult test to satisfy.
[63] The court went on to consider the reception of expert evidence and cautioned that while admissible, it must be treated with extreme care by reason that:
Every invention is obvious after it has been made, and to no one more so than an expert in the field. Where the expert has been hired for the purpose of testifying, his infallible hindsight is even more suspect. It is so easy, once the teaching of a patent is known, to say, "I could have done that"; before the assertion can be given weight, one must have a satisfactory answer to the question, "Why didn't you?"
[64] Equipped with the common general knowledge of the relevant technological field, the unimaginative skilled technician must look at available art, being careful not to engage in an ex post facto analysis, and determine whether the invention would be arrived at directly and without difficulty: Anderson v. Les Machineries Yvon Beaudoin Inc. (1994), 58 C.P.R. (3d) 449 (F.C.T.D.).
[65] Ex post facto analysis of an invention is not sound and thus should be avoided:
Nothing is easier than to say, after the event, that the thing was obvious and involved no invention.
I confess that I view with suspicion arguments to the effect that a new combination, bringing with it new and important consequences in the shape of practical machines, is not an invention, because, when it has once been established, it is easy to show how it might be arrived at by starting from something known, and taking a series of apparently easy steps. This ex post facto analysis of invention is unfair to the inventors, and in my opinion it is not countenanced by English Patent Law.
The King v. Uhlemann Optical Co. (1949), 11 C.P.R. 26 at 46 (Ex. Ct.)
Cabot Corp. v. 318602 Ontario Ltd. (1988), 20 C.P.R. (3d) 132 at 147 (F.C.T.D.) (Cabot)
[66] The seeming simplicity of an invention does not necessarily mean that it was an obvious one: Cabot. Where an invention lies in a particular combination, a dissection of constituent elements is not the proper approach to decide obviousness.
[67] In Omark Industries (1960) Ltd. v. Gouger Chain Saw (1964), 45 C.P.R. 169 (Ex. Ct.), Noël J., as he then was, stated as follows:
Counsel for the defendants . . . presented a chart on the other prior art in which he made a composite, showing that the elements are present in some and not in others, as the ordinary skilled workman is entitled to do, and that these charts indicate that whatever differences there are between the patent in suit and that of the prior art are not inventive differences and cannot form the subject of a valid patent . . . Here again, I might point out, the defendants are not dealing with the invention of the patent in suit in a realistic manner by dissecting the invention as they have done in the prior art charts. Indeed, as I have already held, we are dealing here with an invention that lies in the combination . . . Now, although it is permissible to mosaic in the matter of inventiveness, great caution should be used in dealing with the combination. In Albert Wood & Amcolite Ltd. v. Gowshall Ltd. (1936), 54 R.P.C. 37, Greene L.J. stated:
The dissection of a combination into its constituent elements and the examination of each element in order to see whether its use was obvious or not is, in our view, a method which ought to be applied with great caution since it tends to obscure the fact that the invention claimed is the combination. Moreover, this method also tends to obscure the facts that the conception of the combination is what normally governs and precedes the selection of the elements of which it is composed and that the obviousness or otherwise of each act of selection must in general be examined in the light of this consideration. The real and ultimate question is: Is the combination obvious or not?
It, therefore, is not permissible to characterize the invention as a series of parts because the invention lies in the fact that they were put together . . .
[68] The defendant relies heavily on the evidence of its expert, Mr. Ravalli, to support its position with respect to obviousness. I have already expressed my concern regarding Mr. Ravalli's ability to relate to the knowledge level of the average person skilled in the art. Regarding the issue of obviousness, I am also concerned with his approach that consisted of an examination or analysis of each step in the process, each individual element of each of the claims, and each of the claims in isolation. This method, as evident from the preceding paragraphs, does not find favour with the court where the patent is a combination one. Counsel largely followed its expert's lead in this respect and focussed much of the argument on this "dissection". I am not impressed with this approach and I do not find, on this type of analysis, that the defendant has established that the plaintiff's combination invention was reasonably predictable or that it was an invention that would be arrived at directly and without difficulty by an unimaginative person skilled in the art.
[69] The defendant also referred to the fact that within only months of the claim date, a mechanized device was tested at the Dryvit facility where Mr. Day was employed at the time. Without any evidence with respect to the design, origin, owner or author, the suggestion was that the existence of that device, coupled with Mr. Rao's design in 1997, demonstrated that it was evident that an "opportunity" was recognized by a number of independent persons and therefore the patent was not valid. Evidentiary issues aside, the Canamould Patent was first in time and the Canamould product was produced and marketed from mid-1994. The claim date of the Canamould Patent is antecedent to any and all of the "independently" developed machines referred to by the defendant.
[70] The final argument advanced with respect to obviousness relates to the prior art (the Reiger Patent and the Dryvit push box) and the common general knowledge. The defendant contends that when regard is had to the prior art and common general knowledge, the plaintiff's invention was reasonably predictable.
[71] In the Reiger Patent, the foam core is stationery and there is no means for conveying it in the Reiger apparatus. There is no coating application chamber. Rather, there is a simple plate
with a die. The die is moved over the foam core repeatedly, in two directions, to obtain a smooth finish. Regarding the Dryvit push box, adhesive is applied as opposed to a smooth base coat. The adhesive is applied in ribbon strips and there are spaces between the strips. There is a three-sided structure rather than a coating chamber. The movement of the foam under the application blade is achieved manually and, the coating is on the top of the board only, not on the sides.
[72] I agree with the evidence of Mr. Day that there is no logical design progression that would combine the Reiger back-and-forth motion of a single die plate, to obtain a smooth decorative surface, with the Dryvit device that incorporates motion of a foam board through a device to apply ribbons or strips of adhesive. I also note Mr. Day's observation regarding the long period of time during which the EIFS technology was known and subject to improvement in efficiency and innovation for competitive reasons. Notwithstanding, the Canamould method and device were neither conceived nor adopted in the industry before the Canamould Patent invention.
[73] The evidence establishes that after the invention was commercialized, Canamould became the market leader in the industry and it has retained that position. The decorative mouldings constitute the bulk of the product manufactured and sold by Canamould. They are produced in accordance with the invention. Additionally, and despite Mr. Ravalli's sophistication, he testified that while the Canamould invention did not require genius, it did require a creative or imaginative step to go from the prior art to the Canamould Patent invention.
[74] I conclude that the Canamould Patent constituted an invention that would not be arrived at directly and without difficulty by an unimaginative person skilled in the art. The patent is not invalid for obviousness.
REMAINING ISSUES
[75] The reissue of the patent was not challenged. The patent issued on January 27, 1998 and was reissued on September 7, 1999. Claim 1 was modified by replacement of the term "cementatious [sic] liquid coating" with the term "liquid coating". The original statement of claim was issued April 22, 1999 and was amended on September 27, 1999 to include reference to the reissued patent. The statement of claim was further amended, on consent, at the outset of the trial on January 13, 2003, to include reference to an identical claim in both the original and the reissued patent. Section 47 of the Act provides for the reissue of a patent.
[76] Surrender of the patent only takes effect upon issue of the new patent. For any action that is commenced or that occurs after the reissuance, the new patent is treated as though it had been filed in the correct form. For any pending litigation, all parts of the patent that remain as in the original are deemed to continue. For the cause of action to be continued and not abated, or otherwise affected, there must be at least one identical claim in both the original patent and the reissued patent: Warner-Lambert Co. v. Wilkinson Sword Canada Inc. (1988), 21 C.P.R. (3d) 145 (F.C.T.D.).
[77] Here, claim 9 is identical in both the original and the reissued patent. The cause of action is continued unabated, or otherwise affected.
[78] The final issue is the license issue. This is confined to the question of whether Canamould is a licensee that may "claim under" the patentee pursuant to subsection 55(1) of the Act. It is common ground that the numbered company is a proper plaintiff to the action. In view of my finding with respect to the issue of infringement, it is not necessary to determine this issue.
[79] The claim of infringement is dismissed. The counter-claim alleging invalidity is also dismissed. The plaintiffs are entitled to a declaration that the Canadian Patent No. 2,184,205 and its reissue is valid and subsisting as regards the defendant. The defendant, plaintiff by counter-claim, is entitled to a declaration that its Driangle device does not infringe the Canamould Patent.
[80] Counsel requested that the issue of costs be deferred until after judgment. Counsel are encouraged to endeavour to resolve the issue of costs by agreement and are reminded that success has been divided. Absent resolution, counsel are to serve and file written submissions on the issue of costs within 60 days of the date of this judgment. Responses to those submissions are to be served and filed within 10 days of service of the first submissions or within 70 days of the date of this judgment, at the election of counsel. I remain seised of this matter with respect to determination of the issue of costs.
___________________________________
Judge
Fredericton, New Brunswick
February 26, 2003
SCHEDULE "A"
to the
Reasons for order dated February 26, 2003
in
CANAMOULD EXTRUSIONS INC. and
888804 ONTARIO LIMITED
v.
DRIANGLE INC.
T-705-99
AGREED STATEMENT OF FACTS
The Parties
81. Canadian Patent 2,184,205 (the "Original Canamould Patent") and Canadian Reissued Patent 2,184,205 (the "Reissued Canamould Patent") both list the Plaintiff 888804 Ontario Limited as their owner.
82. The Plaintiff, Canamould Extrusions Inc. ("Canamould") manufactures and sells pre-coated decorative mouldings in Canada under a purported licence from the Plaintiff 888804 Ontario Limited.
83. The Defendant Driangle Inc. ("Driangle") was incorporated on June 18, 1997. Since at least 1998, and continuing to the present, Driangle has made and sold pre-coated decorative mouldings in Canada.
84. Each of the parties has an office and place of business in, or in proximity to, Toronto, Ontario.
Decorative Mouldings
85. Decorative mouldings are affixed to buildings to provide a decorative aspect to the building. Example of such a decorative moulding are shown in the trim around the windows and doors in the photograph below:
[photograph]
86. For many years, decorative mouldings have been applied to building exteriors. A common inner component for these type of mouldings is a foam or expanded polystyrene (EPS). A fibreglass mesh is often applied to the foam core and a coating is then applied.
87. Decorative mouldings are typically designed to allow adhesive to be applied to one surface to permit adhesion between an uncoated face of the moulding and the surface to which the shape is to be applied.
The Cananould Patent
88. The original application for Canadian Patent No. 2,184,205 was filed on August 27, 1996 and the patent issued on January 27, 1998 to the patentee 888804 Ontario Limited. The patent was reissued on September 7, 1999, also to 888804 Ontario Limited.
89. The Canamould Patent is for an invention entitled "Method and Apparatus for Manufacturing Decorative mouldings", and names Ned Santarossa as the inventor.
90. The claims of the Canamould Patent include a method of manufacturing decorative mouldings (claims 1-8), as well as a device used to manufacture such mouldings (claims 9-16).
91. On September 7, 1999, the Original Canamould Patent was reissued as the Reissued Canamould Patent. Claim 1 of the Original Canamould Patent was modified by the replacement of the term "cementatious liquid coating" with the term "liquid coating". The other claims remained unaltered by the reissue of the patent.
92. Claim 1 of the Reissued Canamould Patent reads:
A method of manufacturing an elongate decorative moulding having a decorative surface, comprising the steps of:
(a) placing a flat surface of an elongate foam moulding core on an input portion of a flat elongate table, the foam core comprising a flexible resilient expanded polymer foam solid having: said flat surface on one side; a decorative surface on another side and a cross sectional profile, the cross sectional profile of the core being proportionally smaller than the desired cross sectional profile of the finished decorative moulding, the table including a smooth continuous planar top surface and a longitudinal axis;
(b) aligning the foam core on said longitudinal axis of the table;
(c) sliding the foam core on the top surface of the table forwardly along the axis through a coating containment chamber, the coating chamber: having a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a die, the die having a die opening with a profile proportionally larger than the cross sectional profile of the moulding core, the die opening having a profile conforming a desired cross sectional profile;
(d) applying a liquid coating material to the decorative surface of the moulding core as the foam core slides through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material;
(e) passing the coated moulding core through the die opening on to an output portion of the table top surface; and
(f) curing the coating material after the moulding has passed the die.
93. Claim 9 of the Reissued Canamould Patent reads:
A device for manufacturing an elongate moulding having a flat surface on one side, a decorative surface on another side and a cross sectional profile, the device comprising: table means, having a smooth continuous elongate planar top surface, a longitudinal axis, an input portion, a midportion and an output portion, for supporting a flexible foam moulding core on said flat surface thereof as the core slides along the longitudinal axis; alignment means, on said input portion, for aligning the foam core on the longitudinal axis; a first coating containment chamber on said midportion having: a bottom surface defined by the top surface of the table; having a rearward opening larger than the core profile; side walls and a forward wall which includes a first die, the first die having a die opening with a profile proportionally larger than the cross sectional profile of the moulding core, the die opening having a profile conforming a desired cross sectional profile; and driving means for driving the foam core through the coating chamber, the flat surface of the core slidingly engaging the top surface of the table thus being shielded from coating material, and for passing the first coated core through the first die opening onto the output portion of the table top surface.
Driangle's Activities
94. Driangle manufactures decorative mouldings by:
a) using a foam core which has a cross sectional profile which is proportionally smaller than the cross sectional profile of the finished shape;
b) securing a reinforcing mesh to the decorative surface of the foam core prior to coating;
c) passing the mesh covered architectural shape through a coating containment chamber which has a rearward opening larger than the core profile, sidewalls and a forward wall which includes a die;
d) using a die which is a removable plate and has a die opening with a profile proportionally larger than the cross sectional profile of the foam core. The die opening has a profile conforming a desired cross sectional profile for the pre-coated decorative moulding; and
e) curing the coating material after the moulding has passed the die.
95. It is known by those skilled in the art that several different types of coating materials can be used in the coating chamber for making pre-coated architectural shapes, as long as the coating cures to a fine smooth finish that is visually appealing.
The Machinery Used By Driangle
96. The equipment used by Driangle for manufacturing pre-coated decorative mouldings is shown in the following photographs:
[photographs]
Commercialization of the Driangle Product
97. Driangle's first commercial sale of a pre-coated decorative moulding made using the method and device described above occurred on March 17, 1998. Driangle has continued to make use of the method and device to the present.
Dated at Toronto, Ontario this 20th day of December, 2002
[Solicitors for the plaintiffs' signature]
[Solicitors for the defendant's signature]FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-705-99
STYLE OF CAUSE: CANAMOULD EXTRUSION LTD. et al.
Plaintiffs
- and -
DRIANGLE INC.
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JANUARY 13, 2003
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: February 26, 2003
APPEARANCES:
Bruce W. Stratton
Michael C. Crinson
FOR THE PLAINTIFFS
Stephen M. Lane
L.E. Trent Horne
FOR THE DEFENDANT
SOLICITORS OF RECORD:
Bruce W. Stratton
Michael C. Crinson
DIMOCK STRATTON CLARIZIO LLP
Toronto, Ontario
FOR THE PLAINTIFFS
Stephen M. Lane
L.E. Trent Horne
SIM, HUGHES, ASHTON & McKAY LLP
Toronto, Ontario
FOR THE DEFENDANT
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