AlliedSignal Inc. v.
Du Pont Canada Inc. et al
citation(s): (1993) 50 C.P.R. (3d) 1 (F.C.T.D. per Reed J.)
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AlliedSignal Inc. v.
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copyright 1997 Donald M. Cameron, Aird & Berlis
The patent describes the invention as relating to a blended polyamide/polyolefin film of low crystallinity. Claims 1 and 12 state that the improvement, with respect to which a patent is claimed, is the use of a low crystallinity polyamide film. The polyamide is described as "having a crystallinity of less than 35%". The patent states:
"By the term "low crystallinity", as used herein, is meant the measurable crystallinity of the main component, the polyamide component. The crystallinity of the polyamide component is determined by conventional X-ray diffraction techniques; where the polyamide is polycaprolactam, the method used is that described in ... If the polyamide is polyhexamethylene diamine adipamide, the method described in the reference "Nylon Plastics", Chapter 8, J. Wiley and Sons, New York, 1973, is used..."
...Chapter 8 of the text entitled Nylon Plastics which is referred to in the patent reads, in part:
"Estimation of percent crystallinity
... For all the nylons there is no obvious procedure for resolution of a diffraction pattern into crystalline and amorphous regions and the calculation of even an empirical degree of crystallinity. There is no obvious demarcation between crystalline and amorphous areas. An instrument such as the Du Pont 310 curve analyzer can be used to resolve these patterns but the results can be quite arbitrary. Thus for polyamides, x-ray diffraction is not commonly used to derive a measurement of crystallinity."
The Decision
At p. 31
"The patent is not very explicit as to how the different degrees of crystallinity relate to tear strength. Counsel for the defendants invites me either to look at the U.S. file wrapper or to merely reflect on the suggestion that the crystallinity requirements of the patent were added to distinguish it from Mesrobian so that a patent could be obtained. I have previously expressed the view that I do not think that the file wrappers are automatically inadmissible but that it is always a question of what they are being used for and the weight to be given to them: Samsonite Corp. v. Holiday Luggage Inc. (Court File No. T-2396-87, May 4, 1988, at pp. 28-30 [20 C.P.R. (3d) at pp. 313-6, 21 C.I.P.R. 286, 9 A.C.W.S. (3d) 440 (F.C.T.D.)]); Foseco Trading A.G. v. Canadian Ferro Hot Metal Specialties, Ltd. (1991), 36 C.P.R. (3d) 35 at pp. 42-7, 46 F.T.R. 81, 27 A.C.W.S. (3d) 177 (F.C.T.D.). Thus, in my view, the file wrapper which was marked as Exhibit "A" for identification, pending a decision with respect to its admissibility, is to be treated as part of the record. At the same time, in this case, I have chosen not to place reliance on the U.S. file wrapper, even though it has been admitted into evidence, because I do not think it is useful to do so."
"It is necessary then to turn to the patent which was issued in 1979. The patent instructs that crystallinity is to be measured using "conventional x-ray diffraction techniques". The patent teaches that when crystallinity of nylon 6,6 (polyhexamethylene diamine adipimide) is being determined, the method described in c. 8 of the test Nylon Plastics is used. However, that text states that "For all nylons there is no obvious procedure for resolution of a diffraction pattern into crystalline and amorphous regions and the calculation of even an empirical degree of crystallinity... Thus for polyamides, X-ray diffraction is not commonly used to derive a measurement of crystallinity."
"With respect to Allied's method of resolving X-ray diffraction scans, to obtain a percentage crystallinity for nylon 6,6, there is no explicit teaching of this method in the patent. There is no express teaching found in the contemporary literature. There is no documentary evidence that Allied or anyone else tested nylon 6,6 for crystallinity using this method at the time of the application for the patent. Even if I were to accept that the plaintiff's method is a conventional X-ray diffraction technique, c.8 of Nylon Plastics specifically states that one cannot obtain reliable percentage crystallinity measurements from X-ray diffraction. It recommends using density or density correlated with infra-red instead. Then, the description of the X-ray diffraction scans which follow does not demonstrate increased crystallinity as one moves from a broad single peak to two sharp peaks, as the plaintiff asserts should be the case."
... Putting myself in the position of the skilled addressee at the date of the issue of the patent and applying the appropriate tests, I conclude, on the basis of the evidence, that in so far as nylon 6,6 is concerned, the patent is ambiguous and insufficiently describes how the crystallinity of the nylon is to be measured."
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