Supreme Court of Canada
Guettler v. Canadian International Paper Co., [1928]
S.C.R. 438
Date: 1928-04-24
Guettler et al v.
Canadian International Paper Company et al.
1928: March 12, 13; 1928: April 24.
Present: Duff, Newcombe, Rinfret, Lamont and
Smith JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Patent—Invalidity—No patentable
invention—Alleged improvements in barking drum for stripping logs in making of
pulp—Commercial success.
APPEAL by the plaintiffs from the judgment of
Maclean J., President of the Exchequer Court of Canada, dismissing
the plaintiffs’ action for infringement of patent, on the ground of invalidity
of the patent. The appeal was dismissed with costs.
The patent in question was for alleged
improvements in a barking drum used for stripping logs in the making of pulp,
the improvements consisting of devices for effecting the required tumbling
action, constructed in such a way as to avoid the brooming or splintering of
the ends of the logs which is liable to occur when tumbling devices of the
usual character are employed.
[Page 439]
The judgment of the Court dismissing the
appeal was delivered by Duff J. After referring to the appellants’ claims in
support of the patent, he said:
“The sole question on the appeal concerns the
validity of the appellant’s patent; and that reduces itself to the question,
which is a question, of fact: Have the respondents established the proposition
on which their case in the court below was rested that the subject matter of
the appellant’s patent does not disclose invention?”
He then discussed the subject of the patent,
and the claims in regard to it, and discussed a number of earlier patents
obtained by others, and concluded as follows:
“* * * It does not seem to be seriously
doubtful that Alfsen, Ross, Hussey and Paulson had all conceived and disclosed
the idea of a rigid drum composed, in its longitudinal elements, of iron bars
so arranged as to lift the pieces of wood, tumble them over one another in such
a way as to remove the bark without seriously injuring the wood; nor does it
appear to be doubtful that both Ross and Hussey definitely conceived and
disclosed the idea of inwardly projecting parts, or that Ross conceived the
notion of rounding the projections in order to avoid the brooming and
splintering of the logs. Furthermore, in both the Wertheim and the Ehrler
patents, the use of the U bar is suggested and disclosed for purposes which, if
not in all respects identical with the purposes sought to be obtained by the
appellant, were so analogous as to make it impossible to ascribe to his
adoption or adaptation of the idea, the character of patentable invention. Nor
can it be disputed that Paulson effectively embodied his ideas in a barking
machine, which has had a considerable degree of commercial success.
“Mr. Anglin, in his elaborate argument, urged
upon us, properly enough, the degree of commercial success which had been
achieved by Guettler’s drum. Commercial success may be due to many factors, and
the learned trial judge was not satisfied that Guettler’s drum is more
efficient than Paulson’s. The evidence of commercial success cannot afford a
basis for refusing to give effect to the conclusion necessitated, I think, by
the recital itself of the facts already mentioned, that Guettler’s improvements
were not
[Page 440]
of such a character as to imply invention in
the pertinent sense.
“The appeal should be dismissed with costs.”
Appeal dismissed with costs.
A. W. Anglin K.C. and W. D. Herridge for
the appellants.
O. M. Biggar K.C., R. S. Smart K.C., and
J. A. Mann K.C. for the respondents.
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