Canamould Extrusions Ltd. v. Driangle Inc., 2004 CAF 63 (2004)

Extract

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Canamould Extrusions Ltd. v. Driangle Inc., 2004 CAF 63 (2004)

Date: 20040212

Docket: A-162-03, A-278-03

Citation: 2004 FCA 63

CORAM: STONE J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

CANAMOULD EXTRUSIONS LTD. and 888804 ONTARIO LIMITED

Appellants

and

DRIANGLE INC.

Respondent

Heard at Toronto, Ontario, on December 17, 2003.

Judgment delivered at Ottawa, Ontario, on February 12, 2004.

REASONS FOR JUDGMENT BY: STONE J.A.

CONCURRED IN BY: SEXTON J.A.

SHARLOW J.A.

Date: 20040212

Docket: A-162-03, A-278-03

Citation: 2004 FCA 63

CORAM: STONE J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

CANAMOULD EXTRUSIONS LTD. and 888804 ONTARIO LIMITED

Appellants

and

DRIANGLE INC.

Respondent

REASONS FOR JUDGMENT

STONE J.A.

[1] The principal appeal is from an order dated February 26, 2003, in which the Trial Division found Canadian Letters Patent No. 2,184,205 as reissued (the "Patent") to be valid and not infringed. In view of her finding of non-infringement, Layden-Stevenson J. did not find it necessary to deal with the respondent's contention that a licensing agreement dated November 15, 1993, had not vested any right in the appellant Canamould Extrusions Ltd. to exploit the patented invention.

[2] The other appeal is from a judgment dated May 20, 2003 by which the Trial Judge awarded the respondent 50% of its costs. The parties agree that the award of costs should be varied if this Court finds that the respondent infringed the Patent. Otherwise, the award should remain unchanged.

[3] The validity of the Patent is not under appeal. The main issue before this Court is whether the Trial Judge erred at law in construing the claims of the Patent, and if so, whether she erred in finding that the Patent was not infringed. As construction of patent claims is "a matter of law" ( Whirlpool Corp. v. Camco Inc. , [2000] 2 S.C.R. 1067, 2000 SCC 67 , at paragraph 61), the standard of review is that of correctness ( Housen v. Nikolaisen , [2002] 2 S.C.R. 235, 2002 SCC 33 , at paragraph 8. Infringement of a patent, on the other hand, is "a mixed question of fact and law" ( Whirlpool, supra , at paragraph 76), which calls for the standard of palpable and overriding error ( Housen, supra , at paragraph 31). The order under appeal must be reviewed with these standards in mind.

FACTUAL BACKGROUND

The Patent

[4] The Pate...

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