Owens – Illinois Inc. et al v. Koehring Waterous Ltd. et al
(1978) 40 C.P.R. (2d) 72 (Federal Court, Trial Division, per Gibson J.
aff'd (1980) 52 C.P.R. (2d) 1; leave refused (1980) 35 N.R. 625n (S.C.C.)
This statutory bar to the issue of a patent requires that the invention must be for one that was not in public use or on sale in Canada for more than two years prior to the filing of the application for a patent. See Gibney et al. v. Ford Motor Co. of Canada Ltd. (1967), 52 C.P.R. 140, [1967] Ex. C.R. 279, 35 Fox Pat. C. 143 (Ex. Ct.) per Noel, J.; Hudson, Scott & Co., Ltd. v. Barringer, Wallis & Manners, Ltd. (1905), 23 R.P.C. 79 at pp. 87-8 (Ch. D.) per Kekewich, J.; Leithiser et al. v. Pengo Hydra-Pull of Canada Ltd. (1973), 12 C.P.R. (2d) 117 at pp. 134-6 (F.C.T.D.) per Head, J. [affirmed 17 C.P.R. (2d) 110, [1947] 2 F.C. 954, 6 N.R. 301]; Philco Corp. v. Admiral Corp. (1961), 199 F. Supp. 797 at pp. 815-7 (U.S.D.C., Del.) per Wright, C.J.; The same test for an anticipatory document must be satisfied: see Omark Industries (1960) Ltd. v. Gouger Saw Chain Co. et al. (1964), 45 C.P.R. 169 at pp. 216-7, [1965] 1 Ex. C.R. 457, 27 Fox Pat. C. 1, per Noel, J. It must be operative and practical except in the case of the disclosure of something impractical in which case it must be immediately obvious how to remedy the defect. It must also not be an experimental use. See Unipak Cartons Ltd. v. Crown Zellerback Canada Ltd. (1960), 33 C.P.R. 1 at pp. 41-2, [1956-60] Ex. C.R. 396; Price Bros. & Co. Ltd.’s Opposition, [1968] R.P.C. 324 at pp. 329-30; Conway v. Ottawa Electric R. Co. (1904), 8 Ex. C.R. 432; Cluett, Peabody & Co. Inc. v. Dominion Textile Co. Ltd., [1938] 1 D.L.R. 465, [1968] Ex. C.R. 47 at pp. 72-3.
The evidence adduced at trial in support of this defence included the evidence of one Jack Eynon of Abitibi Power and Paper Company Limited who visited on February 1, 1965, the plant of the defendant Koehring Waterous Ltd., at Brantford, Ontario and saw there some components of an experimental model of a tree harvesting machine.
In essence, all that was shown to Eynon on this trip to Brantford, Ontario in the way of equipment, sketches and documents constituted only something which eventually led to the fabrication of the machines which were exemplified by exs. 42A and 62B at trial.
As a consequence, the evidence does not support this statutory defence.