Case Comment
Procter & Gamble Co. v.
Bristol-Myers Canada Ltd.
citation(s): (1978) 39 C.P.R. (2d) 145 (F.C.T.D.)
Case Comment |
Procter & Gamble Co. v.
|
copyright 1997 Donald M. Cameron, Aird & Berlis
The patent claimed an article and method for conditioning clothes in the dryer.
1. The method of conditioning fabrics which comprises commingling pieces of damp fabric by tumbling said pieces under heat in a laundry dryer together with a substrate carrying a transferable conditioning agent, thereby to effect transfer of the conditioning agent to the fabric while being dried.
19. A fabric conditioning article comprising a flexible substrate carrying a normally solid fabric conditioning agent, said fabric conditioning agent comprising a material which has a softening temperature below the temperature of from about 120o F. to about 190o F. encountered in a laundry dryer to enhance thereby transfer of said fabric conditioning agent to fabrics contacted therewith, the weight ratio of fabric conditioning agent to flexible substrate being at least 0.25:1.
"In the case at bar, not only by its instructions and directions on the packages of Fleecy as to the method of using it but by its advertising on television, the defendant invites and induces the public to infringe the method claims of the patent. Witnesses, in describing the marketing tactics of the soap and clothes-softening industries, qualified the intensive television and other media advertising as an "education" of the public. At the risk of sounding facetious, I prefer the term "brain washing" or perhaps, in the circumstances, the term "brain softening" would be more appropriate. Some video-tapes of relevant television commercials were shown at trial. They did not appear to be more exaggerated or inane than the average television product commercial. I might be forgiven, however, for taking some judicial notice of the miraculous benefits to our person, to our wearing apparel and to all our household goods and chattels, which are generally proclaimed by those who market soaps, cleansers and conditioners of every kind and description, including liquid softeners and also, conversely, for taking notice of the dire consequences of "static cling", "detergent washed diapers", "ring around the collar" and other equally serious afflictions."
"It is difficult to conceive how the present defendant should not be considered as systematically engaging for its own profit in aiding and abetting any infringement by the public of the plaintiff's method claims and should not be considered as constituting itself a party to each infringement committed by such users. Where the defendant has induced or procured an infringement, I do not feel that it is at all necessary in such cases for the supplier to have had any personal contact with the infringing consumer, to even know his or her identity or to have sold the article directly to that person. It is sufficient in such cases, if it is also established, that the article in fact has been sold by the defendant for the purpose of putting it on the market for sale to the ultimate infringer, regardless of whether the final sale is made by an agent of the defendant or by independent distributors or retailers. In the present case, the article being sold infringes the product claims of the plaintiff's patent and is produced and sold initially for the express purpose of having it resold to the public to be used as directed by the defendant."
"The invention consists of both a product and a method. Under the circumstances, knowingly inducing or procuring the infringement by the public of any of the method claims constitutes in itself an infringement at law by the defendant of that method claim of the invention."
At p. 167:
"It is difficult to conceive how the present defendant should not be considered as systematically engaging for its own profit in aiding and abetting any infringement by the public of the plaintiff's method claims and should not be considered as constituting itself a party to each infringement committed by such users. Where the defendant has induced or procured an infringement, I do not feel that it is at all necessary in such cases for the supplier to have had any personal contact with the infringing consumer, to even know his or her identity or to have sold the article directly to that person. It is sufficient in such cases, if it is also established, that the article in fact has been sold by the defendant for the purpose of putting it on the market for sale to the ultimate infringer, regardless of whether the final sale is made by an agent of the defendant or by independent distributors or retailers. In the present, the article being sold infringes the product claims of the plaintiff's patent and is produced and sold initially for the express purpose of having it resold to the public to be used as directed by the defendant."
"However, if any exemption exists under s.58 as to the method claims it is not open to the defendant to avail itself of it because it is not the defendant but the purchasers of Fleecy who are using the method of process. Any exemption under s.58 as to the process or method is to the person who practises the process and that practise cannot rub off on the person who is not the user but merely the supplier of the product. Section 58 is, therefore, not available to the defendant with regard to the method claimed."
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