Date: 20060131
Docket: A-462-05
Citation: 2006 FCA 42
CORAM: DESJARDINS J.A.
DÉCARY J.A.
SEXTON J.A.
BETWEEN:
CLEARBROOK IRON WORKS LTD.
Appellant
and
JOHN LETOURNEAU AND
LETOURNEAU LIFE RAIL LTD.
Respondents
Heard at Vancouver, British Columbia, on January 31, 2006.
Judgment delivered from the Bench at Vancouver, British Columbia, on January 31, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20060131
Docket: A-462-05
Citation: 2006 FCA 42
CORAM: DESJARDINS J.A.
DÉCARY J.A.
SEXTON J.A.
BETWEEN:
CLEARBROOK IRON WORKS LTD.
Appellant
and
JOHN LETOURNEAU AND
LETOURNEAU LIFE RAIL LTD.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on January 31, 2006)
SEXTON J.A.
[1] This is an appeal from a motions judge's denial of summary judgment to the appellant, Clearbrook Iron Works Ltd. The appellant had sought a dismissal of a patent infringement action brought by the respondents and a declaration that the respondents' patent was invalid for ambiguity and uncertainty.
[2] In this court, the appellant challenges the motions judge's approach to determining whether the claims of the patent were invalid for ambiguity, contrary to subsection 27(4) of the Patent Act. We are not persuaded that the motions judge erred in either his articulation or application of the legal test for ambiguity of the claims. We agree with the motions judge that there was a genuine issue for trial in this case and therefore he was right in rejecting the application for summary judgment under Rule 216(1).
[3] The appellant also complains that the motions judge failed to address subsection 216(3) of the Federal Court Rules, 1998 in making his decision.
[4] In our view, the motions judge did indeed take subsection 216(3) into account. Moreover, we do not believe that the motions judge erred in exercising his discretion.
[5] In considering whether the patent was invalid for ambiguity, the motions judge commented that the evidence of the respondents' expert was "shaken on cross-examination" but not "completely undermined." He concluded that there should be no grant of summary judgment, particularly where the appellant had called no expert opinion evidence to assist the Court.
[6] It can be inferred from his judgment that the absence of expert opinion evidence from the appellant influenced the motions judge in his refusal to grant the appellant summary judgment on the question of whether the patent was invalid for ambiguity of the claims. After all, the motions judge observed that the evidence of the respondents' expert, "while challenged on cross-examination, remain[ed] uncontradicted." The motions judge found that the respondent had shown there was a genuine issue to be tried. Obviously he was not able, on the evidence before him, to find the facts necessary to grant summary judgment. We can find no error in his refusal to grant summary judgment pursuant to Rule 216(3).
[7] For these reasons, the appeal will be dismissed with costs.
(Sgd.) "J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-462-05
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED SEPTEMBER 26 2005 NO. T-1864-00)
STYLE OF CAUSE: Clearbrook Iron Works Ltd.
v
John Letourneau and Letourneau Life Rail Ltd.
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: January 31st 2006
REASONS FOR JUDGMENT OF THE COURT: Desjardins J.A.
Décary J.A.
Sexton J.A.
DELIVERED FROM THE BENCH BY: Sexton J.A.
APPEARANCES:
|
J. Kevin Wright
|
FOR THE APPELLANT
|
|
Paul Smith/Lawrence Chan
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Davis & Company LLP
Vancouver BC
|
FOR THE APPELLANT
|
|
Paul Smith Intellectual Property Law
|
FOR THE RESPONDENT
|
Vancouver BC
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