A-36-94
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
M & I HEAT TRANSFER PRODUCTS LTD.
Appellant,
(Defendant)
-and-
AIRSEAL CONTROLS INC.
Respondent.
(Plaintiff)
HEARD at Toronto, Ontario, Monday, October 6, 1997 and Wednesday
October 8, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Wednesday, October 8, 1997.
REASONS FOR JUDGMENT BY: STRAYER, J.A.
A-36-94
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
M & I HEAT TRANSFER PRODUCTS LTD.
Appellant,
(Defendant)
-and-
AIRSEAL CONTROLS INC.
Respondent.
(Plaintiff)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on October 8, 1997)
STRAYER, J.A.:
This is an appeal from a decision of the Trial Division of December 23, 1993 in which the appellant's damper was found to infringe the respondent's Canadian patent no. 1,266,199. In spite of an attack on its validity, that patent was also held to be valid. On this appeal that validity is no longer in question, the appellant arguing that the Trial Judge erred in his construction of the patent and in finding infringement.
We are all of the view that the appeal must be dismissed. With respect to construction of the patent, the learned Trial Judge did not err in law in his analysis. He relied on the plain wording of claim 1 but with appropriate reference to the disclosures and drawings of the patent. In this he was obviously much assisted by the evidence of the experts, particularly that of Mr. Hubbert, the respondent's expert. He obviously relied a great deal on Hubbert's evidence as to the meaning of certain terms of art in claim 1, the claim in issue. This was entirely appropriate. As this Court noted in Procter and Gamble Inc. v. Unilever PLC, et al.1
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While the construction of a patent is for the court, it is not initially to be undertaken simply in the manner a court would construe an ordinary contract or a statute, for example, but with the knowledge of the skilled artisan to the extent that such knowledge is revealed by expert evidence accepted at trial. In short, construction turns heavily on the evidence of persons skilled in the art. |
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We also believe the learned Judge gave a purposive construction to the patent. He concluded that the purpose of translation is to move the closure member away from the frame of the duct opening sufficiently to facilitate its rotation without striking that frame, and that the precise sequence of translation and rotation is not otherwise important. He concluded that the "second end of said elongate guideway" referred to in claim 1 need not be the physical end of the guideway. In support of this there was evidence that for functional reasons "end" in claim 1 did not mean physical end of the guideway. We find no error in law in his conclusion that "end" should have the same meaning wherever it is used in the claim. Further he found that it would not be necessary for functional reasons that the ultimate rotation of the closure member occur only at the physical end of the guideway. These were all conclusions as to construction which were open to the learned Trial Judge.
Based on this construction it was equally open to him to find infringement as he did. In this he was correct to compare the appellant's allegedly infringing device with claim 1 and not with particular embodiments of the claim either as illustrated in the patent or as found in the respondent's product based on the patent. Given the construction which he put on the patent and the evidence before him it was quite possible for him to find both substantive and literal infringement as he did.
The appeal should therefore be dismissed with costs.
"B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-36-94
| STYLE OF CAUSE: M & I HEAT TRANSFER |
PRODUCTS LTD.
- and -
DATE OF HEARING: OCTOBER 6, 1997 and
OCTOBER 8, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY:
Delivered from the Bench at Toronto,
Ontario on Wednesday, October 8, 1997
APPEARANCES:
Mr. R. Scott Joliffe
Mr. Jeffrey T. Imai
Mr. Andrew Kelly Gill
Mr. Peter Choe
For the Appellant
Mr. Ronald E. Dimock
Mr. R. Scott MacKendrick
For the Respondent
-2-
SOLICITORS OF RECORD:
GOWLING STRATHY &
HENDERSON
Barristers and Solicitors
Suite 4900, Commerce Court West
Toronto, Ontario
M5L 1J3
For the Appellant
DIMOCK STRATTON CLARIZIO
Mr. Ronald E. Dimock
Box 102
3202-20 Queen Street West
Toronto, Ontario
M5H 3R3
For the Respondent
-and-
AIRD & BERLIS
Mr. R. Scott MacKendrick
Barristers and Solicitors
BCE Place, Suite 1800
Box 754
181 Bay Street
Toronto, Ontario
M5J 2T9
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-36-94
Between:
| M & I HEAT TRANSFER PRODUCTS LTD. |
Appellant
- and -
Respondent
REASONS FOR JUDGMENT
__________________
1 (1995) 61 C.P.R. (3rd ed.) 499 at 506
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