copyright 1997-2004 Donald M. Cameron , Ogilvy Renault
"Everything that can be invented has been invented"
- Charles Duell, U.S. Commissioner of Patents, 1899
A patent is valid in the absence of evidence to the contrary. Under the statutory presumption(1), the party attacking the patent has the onus of proving that the patent is invalid, no matter what the ground of attack may be, on the balance of probabilities.
The attributes of novelty, utility and inventive ingenuity or lack of obviousness are all presumed to be present in an invention for which a patent has been granted until the contrary has been shown.(2)
The pre 1988 Patent Act provided that a patent is prima facie valid. The presumption was redrafted in the 1985 version of the Patent Act (which came into effect on December 12, 1988) to "in the absence of any evidence to the contrary", the patent shall be considered valid. It was merely a stylistic change and did not change the substance of the presumption.(3)
The burden of proving invalidity rests upon the party alleging invalidity.(4) The onus is on the party attacking the patent to put such facts into evidence from which the Court might conclude on the balance of probabilities that the patent is invalid. The question of anticipation is one of fact.(5)
Some Courts have said it is not an easy burden to discharge(6), or that the evidence must be very clear.(7) The more correct statement of the burden of proof is that it depends on each case.(8)
C. PRIOR KNOWLEDGE AND USE: ANTICIPATION
There are two different tests for anticipation, depending upon which Patent Act governs: the pre October 1, 1989 Act or the post-October 1, 1989 Act.
Pre 89:
Q1a Was someone else the first to know of and use the invention?(9) and
Q1b Did that someone else make the invention available to the public before the patent application in question was filed or did that other person apply for a patent for the same invention before the patent at issue, issued?(10)
OR
Q2 Did the inventor wait too long to file the Canadian patent application?
Q2a Had the invention been in the public domain (in a Canadian patent or printed publication(11), or public use or sale anywhere(12)), more than two years before the Canadian patent application was filed?
OR
Q2b If the inventor filed a patent application in another country first, for the same invention, did a patent issue in that other country prior to the filing of the Canadian application?(13)
OR
Q2c If a patent issued in that other country, did the inventor file the Canadian application more than 12 months after the first application filed anywhere?(14)
Post October 1, 1989 and pre October 1, 1996:
Q1a Was someone else the first to file a patent application for the invention?
For applications filed after October 1, 1989, you cannot patent your invention if someone else filed a patent application for the same invention before you (either by filing a Canadian patent application before you or by having an earlier convention priority date for the Canadian application).
There are two scenarios where you will be entitled to a patent where someone else has also filed for a patent for the same invention in Canada:
1. If you are claiming convention priority, you will be entitled to a patent unless someone else filed a patent application in Canada either:
(a) prior to your priority date(15). In other words, they filed in Canada before you filed anywhere, or;
(b) that had a priority date earlier than your priority date.(16) In other words, they filed first elsewhere.
2. If you are not claiming convention priority (s. 28 does not apply) then you are entitled to a patent unless someone else filed a patent application in Canada:
(a) prior to your filing date.(17) [first-to-file wins]
(b) that had a priority date earlier than your filing date.(18) [first-to-file wins]
OR
Q2 Did the inventor wait too long to file the Canadian patent application?
Q2a Did you disclose (directly or indirectly) the invention to the public more than 1 year before the applicant's actual Canadian filing date?(19)
Q2b Did an independent third party inventor disclose the invention prior to the earlier of your Canadian filing date or your priority date?(20) [Absolute novelty required with respect to other "inventors"]
For anticipation of the invention, one must first determine what really is
the invention. Although the claims add light to the invention, the invention is
described in the disclosure of the specification.(21)
C.3 Date of Invention - Pre October 1, 1989 Act
Under the first-to-invent system, the Patent Office or the Court had to determine who was the first to invent.
The first question under Section 27(1)(a) is: What was the date of invention of the invention of the patent in suit? The date is the earlier of the actual filing date of the application in Canada, the priority date or the "invention date" itself as proven by evidence at trial.
The burden on the patentee to prove a date of invention earlier than the date of application which appears on the patent (to which he would otherwise be entitled) is a very serious and heavy onus of proof. He must establish and prove the earlier date by cogent evidence. The prima facie validity of a patent does not go beyond the application date.(22)
To establish a date of invention prior to the filing date of an application,
it is necessary for the inventor to be able to show that, on that date, the
invention was reduced to a practical and definite shape either by a written or
oral description of it or in the case of a product, by the product actually
having been made and used. The making of an invention is more than merely
formulating the idea.(25)
Some Judges have said that if it is possible for the patentee to get the inventor into the witness box, it is incumbent upon him to do so to prove a date of invention earlier than the application date. It is the accepted practice in this Court today to call the inventor, if he is available to testify, to prove a date of invention.(23) However, in the Unilever(24) case, neither co-inventor was called as a witness. Lab book entries were admitted as business records to prove the invention date.
C.4. Prior Knowledge or use before invention date- Pre October 1, 1989 Act
See section C.1 Q1a and Q1b above.
C.5. Prior Printed Publication - Pre October 1, 1989 Act
The prior publication must, for the purposes of practical utility, be equal to that given by the patent in question. It cannot be merely a foreshadowing of the invention or the nucleus of the idea behind the invention. It must clearly show the whole of the invention with all the directions necessary to instruct the public how to put it to use.(26)
In considering whether a prior patent anticipates an invention, the prior patent must be read in light of the common knowledge which a person skilled in the art would have just before the alleged invention was made.(27)
The publication must be "printed". The offset process is not printing;
photocopying may be printing.(28)
The tests for anticipation were summarized by Mr. Justice Gibson in the Reeves Brothers(29) case. This summary has become known as "the Reeves Brothers" test and has been followed in virtually every case since then.(30)
An alleged prior publication or prior patent, to invalidate a patent under Section 28, must meet the vigorous tests of an anticipation. It must:
(1) give an exact prior description; (31)
A prior inventor must be shown to have planted his flag at the precise destination before the patentee.(32)
(2) give directions which will inevitably result in something within the claims;
(33)The prior publication must be so clear as to lead the skilled workman to the invention claimed in the patent.(34)
Anticipation is shown where following the instructions of a prior publication inevitably produces a result which falls within the plaintiffs claim even if that result is not as in fact described.(35)
(3) give clear and unmistakable directions;
The prior publication must not only describe an apparatus that anticipates the invention, it must also contain clear and unmistakeable directions so to use it.(36)
Where the stated purpose of the prior art reference is different and the difference in purpose of the two devices is so material then the prior art reference cannot be seen as a source of clear direction.(37)
"Inevitable" anticipates, 50/50 does not. If the direction given in the prior art, when carried out, is at least as likely not to infringe a patent claim, then it doesnt anticipate the claim.(38)
(4) give information which for the purpose of practical utility is equal to that given by the subject patent;
(39)Whatever is necessary to the invention for the purposes of its practical working and utility must be found in the prior publication.(40) An invention that is practically useless is not an anticipation of a subsequent invention which achieves success, even if the two are very similar.(41) A publication that discloses an inoperable device can not be an anticipation of a subsequent invention, for how could one reading that say, "this gives me what I wish"?(42) Anticipation is not shown where the prior device was impractical and inoperable when used in the manner of the patented invention.(43)
If specific details are necessary for the practical working and utility of the invention, they must be found substantially in the prior publication.(44)
A prior specification is not an anticipation unless it discloses a practicable method of producing the result which is the subject of the invention.(45)
Under the current U.K. Patent Act, for the prior use to constitute anticipation it must have made available to the public an enabling disclosure of the invention.(46) But see contrary in Asahi KKK's Application.
(5) convey information so that a person grappling with the same problem must be able to say "that gives me what I wish";
(47)(6) give information to a person of ordinary knowledge so that he must at once perceive the invention [without experimentation];
(48)(7) in the absence of explicit directions, teach an "inevitable result" which "can only be proved by experiments";
(49)The result must necessarily always be obtained.(50)
(8) satisfy all these tests in a single document without making a mosaic.
When determining anticipation, you cannot "mosaic" prior art documents.(51) It is not enough that the prior document makes suggestions, which taken with suggestions from other and independent documents, may be shown to foreshadow the invention or important steps in it.(52) Anticipation is not established by what may be qualified the 'imaginary assemblage of separate elements gathered from glosses selected here and there in several and distinct anterior specifications.(53) If one must compile and combine previous unconnected publications in an attempt to show anticipation, then it follows that no one has previously done so, and therefore there has been no anticipation.(54)
The Federal Court of Appeal has refined the Reeves Brothers test. The
eighth element is restated as "there could be no finding of anticipation unless
one met any, rather than each of these eight "tests"."(55)
The public use of an embodiment of the claimed invention, as opposed to secret use, is making the invention available to the public.(56)
Under the 1949 U.K. Patent Act, knowledge as to the identity
or composition of the article or means of knowledge were not relevant. Any
commercial sale would constitute use unless it was secret.(57)
Where a patent has achieved commercial success, evidence of prior use
requires very careful scrutiny.(58)
C.7.1 Paper patents willed be viewed very Strictly
"Paper" anticipations must be viewed very strictly. Paper patents (inventions that were patented but never commercialized) will not have the same weight as evidence based on patents whose concepts have been put into use.(59) The fact the prior document, which pre-dates the invention by a number of years, was never realized in practise makes it hard to believe that it anticipates the alleged invention.(60)
The court looks poorly upon an attempt to deprive a meritorious inventor of a useful patent by dredging up some forgotten still-born patent from the limbo of forgotten things.(61)
The prior anticipation of some useful thing by a document which was never put
into useful practice must involve more than the nucleus of the inventive idea.
It must be that the public has been presented with the invention such that no
one else could claim it as their own.(62)
The "infringement test" for anticipation can be briefly stated as: What infringes if later, anticipates if earlier.(63)
If the prior publication contains a clear description of or clear instructions to do or make something that would infringe the patentee's claims if carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not infringe the patentee's claim, the patentee's claim will not have been anticipated.63a
What if the claims describe the prior art, but the prior art is not, for the purpose of practical utility, equal to that given by the patent in suit? In that case the "infringement test" is improper with respect to anticipation.(64)
The "infringement test" more correctly describes claiming more than the
inventor invented: which is covetous claiming.
A claim is invalid if it monopolizes more than the inventor:
a. actually invented (an inventor may not validly claim what he or she has not invented); or
b. described in the patent (an inventor may not validly claim what he or she has not described).
If the breadth of coverage of the claim goes beyond the bounds of what reasonably can be considered to be an inventor's fair reward, then the claim will be declared invalid.(65)
D.1 broader than the invention made
Claims that are broader than the invention made may include:
A. prior art, and be invalid (See "The Infringement Test" above);
B. someone else's simultaneous work or invention, and therefore include more than what was invented;
C. all solutions to the problem and not merely the one invented;
Claims that are limited by reference to a result can easily go beyond the bounds of what can be considered to be an inventor's fair reward. An objection that the claimed invention is merely functional often really means simply that the claim is broader than the invention made.(66)
One is not entitled to claim all ways of reaching an obviously desirable result merely because one has become the first to find a way to reach that result. This is because the result itself is well-known and obvious. Where the result concerned is so obviously advantageous, a claim to any means of attaining it could not possibly be legitimate and so is "not an invention". A patent covering generally any and every means or method for producing a given result cannot be upheld.(67)
It is clear that the discoverer of a new principle is entitled to claim all devices making use of it: all modes of carrying it into effect. For in such a case, the new principle itself will be a part of his invention. If, however, the principle itself is old, such a claim will be too wide; for then the inventor has contributed nothing new except any special method of carrying it out, and his claims must consequently be confined to such special methods.(68)
This distinction applies in particular where the "principle" concerned is the advantageous character of a particular result. If the result is in itself new and not obvious, the inventor may, in theory at least, claim all methods (including methods in themselves obvious) of attaining it. But if the result if known, either in the sense that it has been attained before or in the sense that it was an obviously desirable result if it could be attained, then a claim to any method of attaining it will be too wide.(69)
One cannot claim the solution to a problem as an invention. You can not obtain a monopoly over all methods of remedying a known defect.(70)
The idea of getting rid of a nuisance is not an invention. In fact its the most obvious thing to do. The difficult (and patentable) part is discovering how to do it.(71)
It is covetous to attempt to monopolize all methods of achieving a particular end by claiming the end rather than the method of achieving it.(72) In the claims one can describe a class of substances or compounds by their characteristics, thereby covering all the substances which would work for that purpose.(73)
A patentee can cast his or her claim in language which allows the skilled
addressee reading the claim to employ a substance such that it achieves a
particular function. For instance, the patent can direct the addressee to choose
a suitable liquid with the following characteristics, such that it behaves in a
certain manner or performs a certain function.(74)
D.2 broader than the invention described
The disclosure must support the claims: there must be a description of how to make that which is claimed. The inventor cannot claim more than he or she has described.(75)
The Court will not limit claims by reading them in context with the disclosure and limiting their scope based on the description of the invention given in the disclosure. If the claims are broader than the disclosure, they are invalid.(76)
An inventor can describe how to use one example of a class and then claim the entire class so long as it is predictable that the rest of the class will behave as does the example. The patentee must not claim beyond what is specifically described in the disclosure where it is not reasonably predictable or cannot be extrapolated but is merely speculation.(77)
If an article is new, useful, and has subject-matter, it is patentable. But
the claim may be for something new, useful and which has subject-matter, yet it
may be too wide because it extends beyond the subject-matter of the invention. A
claim may be too wide if it claims protection for something the patentee isnt
entitled to protect. An inventor is not allowed to claim part of a combination
where the invention is in the combination. If the inventive concept is that an
article will attain a certain object when in a particular orientation, then the
claim cannot be for the article at large apart from the orientation.(78)
The validity of the claims may be determined by the result promised by the invention at the beginning of the patent.
Some patents make promises in the region of the "statement of the invention", that the patented invention has certain characteristics or objects. Theses promises or "object clauses" are not mandatory. An invention may have certain advantages, but the advantages need not be part of the invention which must be recited in the claims.(79) A patentee is under no obligation to make promises in respect of the inventions abilities, but where he does and it is fair as a matter of construction to view that promise as material, then when assessing the validity of the claims the ability of the invention described to fulfil that promise is a factor.(80) The invention described in the disclosure may be limited to have certain features. If the claims do not contain these features, then the claims are broader than the invention disclosed or made.(81)
In examining validity as to whether the claims are broader than the
invention, you should read the disclosure first, to see what it is the inventor
thinks is the invention. Then, having read that, read the claims and see whether
it appears the inventor claims more than has been declared to be the
invention.(82)
The "object clause" can be used indirectly to limit the protectable invention to something that includes the stated object. If the claims do not contain the limitation of the stated object then they are broader than the invention described.(83)
1. s. 45, Patent Act R.S. 1985, c. P-4
2. Ernest Scragg & Sons v. Leesona Corp., [1964] Ex. C.R. 649, 45 C.P.R. 1 (Ex. Ct. per Thorson, P.) at 76.
3. Diversified Products Corp. v. Tye-Sil Corp. (1991) 35 C.P.R. (3d) 350 (F.C.A. per Decary J.A.) at pp. 357-358.
4. McPhar Co. v. Sharpe Instruments (1960), 21 Fox Pat. C. 1 at p. 28; Beecham Canada Ltd. v. Procter & Gamble Co. (1982) 61 C.P.R. (2d) 1 (F.C.A. per Urie J.A.) 24. Wellcome Foundation Ltd. v. Apotex Inc. (1991) 39 C.P.R. (3d) 289 (F.C.T.D. per McKay J.) at 336.
5. Xerox of Canada Ltd. et al v. IBM Canada Ltd. (1977) 33 C.P.R. (2d) 24 (per Collier, J.) at p. 24.
6. DeFrees and Betts Machine Co. v. Dominion Auto Accessories Ltd. 25 Fox Pat. C. 58 (per Noel J.) at p.79 (Exchequer Court of Canada);
Windsurfing Int'l Inc. v. Les Entreprises Hermano Ltée (1982), 69 C.P.R. (2d) 176 (F.C.T.D.) at p. 181.
7. Diversified Products Corp. v. Tye-Sil Companies Ltd. (1987),16 C.P.R. (3d) 207 per (F.C.T.D. Cullen J.) at 229.
Windsurfing Int'l Inc. v. Les Entreprises Hermano Ltée (1982), 69 C.P.R. (2d) 176 (F.C.T.D.) at p. 181.
8. DeFrees and Betts Machine Co. v. Dominion Auto Accessories Ltd. 25 Fox Pat. C. 58 (per Noel J.) at p.79 (Exchequer Court of Canada)
9. Pre-1989 Patent Act, s. 27(1)(a).
10. Pre-1989 Patent Act, s. 61(1).
11. Pre-1989 Patent Act, s. 27(1)(b).
12. Pre-1989 Patent Act, s. 27(1)(c).
13. Pre-1989 Patent Act, s. 27(2)(a).
14. Pre-1989 Patent Act, s. 27(2)(b).
15. Post-Oct. 1, 1989 Patent Act, s. 27(1)(a)(i).
16. Post-Oct. 1, 1989 Patent Act, s. 27(1)(a)(ii).
17. Post-Oct. 1, 1989 Patent Act, s. 27(1)(b)(i).
18. Post-Oct. 1, 1989 Patent Act, s. 27(1)(b)(ii).
19. Post-Oct. 1, 1989 Patent Act, s. 27(1)(d).
20. Post-Oct. 1, 1989 Patent Act, s. 27(1)(c).
21. Baldwin Int'l Radio Co. of Canada Ltd. v. Western Electric Co. Inc. et al, (1934) S.C.R. 94 at p. 100.
22. Omark Industries v. Gouger Saw Chain (1964), 45 C.P.R. 169 (Ex. Ct. per Noel, J.) at p. 206-210.
Apotex Inc. v. Hoffman La-Roche Ltd. (1987), 15 C.P.R. (3d) 217 (F.C.T.D. per Reed. J.) at p. 239-241, affirmed (1989), 24 C.P.R. (3d) 289 (F.C.A.).
23. Omark Industries v. Gouger Saw Chain (1964), 45 C.P.R. 169 (Ex. Ct. per Noel, J.) at p. 209.
24. Unilever PLC v. Procter & Gamble Inc. (1995), 61 C.P.R. (3d) 499 (F.C.A. per Stone J.A.)
25. Christiani & Nielsen v. Rice, [1930] S.C.R. 443 (S.C.C.) at p. 456.
Marzone Chemicals Ltd. v. Eli Lilly and Co. (1978), 37 C.P.R. (2d) 37 per Pratte, J.A. at p. 39. also 37 C.P.R. (2d) 3 per Gibson, J. p. 36-37.
Koehring Canada Ltd. v. Owens-Illinois Inc. (1980), 52 C.P.R. (2d) 1, (F.C.A. per Le Dain, J.) at p. 11.
Hammond Organ Co. v. Stinson Jr. (1970), 65 C.P.R. 62, per Walsh, J. p. 70-75 (Ex. Ct.);
AT&T v. Mitel (1989) 26 C.P.R. (3d) 238, (F.C.T.D. per Reed, J.) at p. 265.
26. The King v. Uhlemann Optical Company, [1950] Ex. C.R. 142 at 157.
27. The King v. Uhlemann Optical Company, [1950] 10 Fox Pat. C. 24 (per Thorson P.) at p. 39.
28. Xerox of Canada Ltd v. IBM Canada Ltd., (1977) 33 C.P.R. (2d) 24 (F.C.T.D. per Collier J.) at p. 85.
29. Reeves Brothers Inc. v. Toronto Quilting & Embroidery Ltd. (1978), 43 C.P.R. (2d) 145 (F.C.T.D. per Gibson J.) at p. 157.
30. Lubrizol Corp. et al v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 1 at p. 24 (F.C.T.D.).
Hy Kramer Canada Ltd. et al v. Lindsay Specialty Products Ltd. et al (1986), 9 C.P.R. (3d) 297 at p. 305.
Windsurfing International Inc. v. Trilantic Corporation (1985), 8 C.P.R. (3d) 241 at p. 255.
Corning Glass Works v. Canada Wire & Cable Ltd. (1984), 81 C.P.R. (2d) 39 at p. 63-70, (F.C.T.D.).
31. Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
32. The General Tire & Rubber Company v. The Firestone Tyre and Rubber Company Limited and Others [1972] R.P.C. 457 at p. 486.
33. The General Tire & Rubber Company v. The Firestone Tyre and Rubber Company Limited and Others [1972] R.P.C. 457 at p. 485-486.
Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
34. Sakharam D. Mahurkar v. Vas-cath of Canada Limited et al (1988) 18 C.P.R. (3d) 417 (F.C.T.D. per Strayer J.) at p. 430.
35. General Tire & Rubber Company v. Firestone Tyre & Rubber Company Limited and Others, [1971] R.P.C. 173 (per Graham, J.) at p. 232 quoting from Flour Oxidising Co. v. Carr & Co. (1908) 25 R.P.C. 428 (H.L. per Lord Parker) at p. 457, line 34.
36. Flour Oxidising Co. v. Carr & Co. (1908) 25 R.P.C. 428 (H.L. per Lord Parker) at p. 457, line 34; quoted with approval in Electrolier Manufacturing Company Ltd. v. Dominion Manufacturers Limited [1934] S.C.R. 436 (per Rinfret, J.) at p. 441.
CGE Co. Ltd. v. Fada Radio Ltd., [1927] 2 D.L.R. 911 at p. 917.
37. Sakharam D. Mahurkar v. Vas-cath of Canada Limited et al (1988) 18 C.P.R. (3d) 417 (F.C.T.D. per Strayer J.) at p. 430.
38. General Tire & Rubber Co. v. Firestone Tyre & Rubber Co. Ltd. [1972} R.P.C. 457 at 485 (Eng. C. of A.); followed in Quantel Ltd. v. Spaceward Microsystems Ltd. [1990] R.P.C. 83 (Patents Court per Falconer J.) at p. 112.
39. Hill v. Evans (1862), 45 E.R. 1195 per Lord Westbury.
CGE Co. Ltd. v. Fada Radio Ltd., [1927] 2 D.L.R. 911 at p. 917.
The King v. Uhlemann Optical Company [1950] 10 Fox Pat. C. 24 (per Thorson P.) at pp. 38-39.
Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
40. The King v. Uhlemann Optical Co. (1951), 15 C.P.R. 99 (S.C.C.) at p. 104.
41. Farwell, L.J. in Re Andrews' Patent (1907), 24 R.P.C. 349 at p. 371.
42. Lovell Manufacturing Co. v. Beatty Bros. Ltd. (1962), 41 C.P.R. 18 (Ex.Ct) Per Thomson P. at p. 47.
43. Tye-Sil Corp. v. Diversified Products Corp. et al, (1991), 35 C.P.R. (3d) 350 (F.C.A.) at p. 363.
44. Hill v. Evans (1862), 45 E.R. 1195 per Lord Westbury.
Beloit Canada Ltd. v. Valmet Oy, (1986) 8 C.P.R. (3d) 289 at 297 (F.C.A. per Hugessen J.A.) at p. 298-299.
45. Betts v. Menzies (1862), 10 H.L.C. 117 at p. 153.
46. Quantel Ltd. v. Spaceward Microsystems Ltd. [1990] R.P.C. 83 (Patents Court per Falconer J.) at p. 129, l. 20-23.
47. Pope Appliance Corp. v. Spanish River Pulp & Paper Mills Ltd., (1929) 46, R.P.C. 23, (Judicial Committee of the Privy Council) per Viscount Dunedin at p. 52.
Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
48. Hill v. Evans (1862), 45 E.R. 1195.
Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
49. Letraset International Ltd. v. Dymo Ltd., [1976] R.P.C. 65 at p. 75 (Eng. C.A.).
50. Letraset International Ltd. v. Dymo Ltd., [1976] R.P.C. 65 at p. 75 (Eng. C.A.).
Beloit Canada Ltd. v. Valmet Oy, (1986) 8 C.P.R. (3d) 289 at 297 (F.C.A. per Hugessen J.A.) at p. 298-299.
51. Eli Lilly & Co. v. Marzone Chemicals Ltd., (1977), 37 C.P.R. (2d) 3 (F.C.T.D. per Gibson J.) at p. 32.
Beloit Canada Ltd. v. Valmet Oy, (1986) 8 C.P.R. (3d) 289 at 297 (F.C.A. per Hugessen J.A.) at p. 298-299.
52. British Ore Concentration Syndicate Ld. v. Minerals Separation Ld. (1909), 26 R.P.C. per Lord Moulton at p. 147.
53. His Majesty the King v. Uhlemann Optical Company, [1952] 1 S.C.R. 143 (per Rinfret, C.J.) at p. 150.
54. The General Tire & Rubber Company v. The Firestone Tyre and Rubber Company Limited and Others [1972] R.P.C. 457 at p. 486.
55. Tye-Sil Corp. Ltd. v. Diversified Products Corp. et al (1991), 35 C.P.R. (3d) 350 at p. 361 (F.C.A.).
Procter & Gamble Co. et al. v. Kimberly Clark of Canada Ltd. (1991), 40 C.P.R. (3d) 1 at p. 33.
56. Gibney v. Ford Motor Company of Canada Ltd., [1967] 2 Ex. C.R. 279, per Joel, J. at p. 298.
57. Quantel Ltd. v. Spaceward Microsystems Ltd. [1990] R.P.C. 83 (Patents Court per Falconer J.) at p. 129, l. 15-20.
58. Boyce v. Morriss Motors Lts. (1927) 44 R.P.C. 105 at 135; approved in Quantel Ltd. v. Spaceward Microsystems Ltd. [1990] R.P.C. 83 (Patents Court per Falconer J.) at p. 122.
59. Creations 2000 Inc. v. Canper Industrial Products Ltd. (1991), 34 C.P.R. (3d) 178, (F.C.A. per Hugessen J.A.) at p. 181.
60. Sakharam D. Mahurkar v. Vas-cath of Canada Limited et al (1988) 18 C.P.R. (3d) 417 (F.C.T.D. per Strayer J.) at p. 432.
61. Pirrie v. York Street Flax Spinning Co. (1894), 11 R.P.C. 429 at p. 445.
See also Creations 2000 Inc. v. Canper Industrial Products Ltd. (1991), 34 C.P.R. (3d) 178, (F.C.A. per Hugessen J.A.) at p. 181.
62. Sir W.G. Armstrong, Whitworth & Co. v. Hardcastle, (1925), 42 R.P.C. 543 (Lord Dunedin) at p. 555.
63. Lightening Fastener Company, Limited v. Colonial Fastener Company, Limited et al [1933] S.C.R. 377 (Ex. Ct. per Rinfret, J.) at p. 381; quoted in J.M. Voith GMBH v. Beloit Corp. 26 C.I.P.R. (F.C.T.D. per Rouleau J.) 22 at p. 59
General Tire & Rubber Company v. Firestone Tyre & Rubber Company Limited [1971] F.S.R. at p. 443.
63a General Tire & Rubber Company v. Firestone Tyre & Rubber Company Limited [1972] R.P.C. 457 at 485-486.
64. Consolboard Inc. v. MacMillan Bloedel (Sask) Ltd. (1981) 56 C.P.R. (2d) 145 (S.C.C. per Dickson J.) at 167-168.
Procter & Gamble Co. v. Kimberly-Clark of Canada Ltd. (1991), 40 C.P.R. (3d) 1 at p. 34.
65. Leitheiser et al v. Pengo Hydra-Pull of Canada Ltd. (1974), 17 C.P.R. (2d) 110 (F.C.A. per Thurlow, J.) at 118.
66. R.C.A. Photophone v. Gaumont-British (1936), 53 R.P.C. 167 (C.A.) at 195.
67. Paul Bergeon v. De Kermor Electric Heating Co., Ltd. [1927] Ex. C.R. 181 at 195.
See also: Bataafsche Petroleum Maatschappij (N.V.)'s Application, [1956] R.P.C. 254 (C.A.) Denning Wire and Fence Co. v. American Steel and Wire Co.
Patterson v. Gas Light and Coke Company L.R. 2 C.D. 812.
68. R.C.A. Photophone v. Gaumont-British (1936), 53 R.P.C. 167 (C.A.) at 195.
69. British United Shoe Machinery v. Simon Collier (1909), 26 R.P.C. 21 at p. 49.
70. Crabtree v. Hoe (1936), 53 R.P.C. 443 (C.A.) at p. 450.
71. Mullard v. Philco (1935), 52 R.P.C. 261 at p. 274.
72. Procter & Gamble Inc. and The Procter & Gamble Company v. Unilever PLC, and Lever Brothers Limited (1995), 61 C.P.R. (3d) 499 (F.C.A. per Stone J.A.) at p. 515.
73. Procter & Gamble Inc. and The Procter & Gamble Company v. Unilever PLC, and Lever Brothers Limited (1995), 61 C.P.R. (3d) 499 (F.C.A. per Stone J.A.) at p. 517-518.
74. Procter & Gamble Inc. and The Procter & Gamble Company v. Unilever PLC, and Lever Brothers Limited (1995), 61 C.P.R. (3d) 499 (F.C.A. per Stone J.A.) at p. 518-519.
75. Radio Corporation of America v. Raytheon Mfg. Co., (1957) 16 Fox Pat. C. 122 (per President Thorson) at p. 133.
Beecham Canada Ltd. v. The Procter & Gamble Co., (1982) 61 C.P.R. (2d) 1 (F.C.A.) at p. 19-21.
76. Beecham Canada Ltd. v. The Procter & Gamble Co., (1982) 61 C.P.R. (2d) (F.C.A.) at p. 19-21.
77. Hoescht Pharmaceuticals of Canada Ltd. v. Gilbert & Co. [1966] S.C.R. 189
78. The Mullard Radio Valve Co., Ld. v. Philco Radio and Television Corporation of Great Britain, Ld. and Others, [1936] 53 R.P.C. 323 at p. 347.
79. Northern Telecom Limited v. Reliance Electric Industrial Company et al (1992), 44 C.P.R. (3d) 161 (F.C.A.)
80. American Cyanamid Company v. Ethicon Limited, [1979] R.P.C. 215 (per Graham, J.) at p. 261
81. Mullard Radio Valve Co. Ld. v. Philco Radio and Television Corporation of Great Britain, Ld. and Others, (1936) 53 R.P.C. 323 (H.L. per Lord MacMillan) at p. 345-346.
82. The Edison Bell Phonograph Corporation, Limited v. Smith and Young, [1894] 11 R.P.C. 389 at pp. 395-396.
83. Amfac Foods Inc. et al v. Irving Pulp & Paper, Ltd., (1987) 12 C.P.R. (3d) 193 (F.C.A. per Urie J.).
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