Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd., (1994) 72 F.T.R. 297 (TD)

• Judge: Dubé, J.
• Court: Federal Court (Canada)
• Case Date: January 24, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 72 F.T.R. 297 (TD)

Feherguard Products v. Rocky's of B.C. (1994), 72 F.T.R. 297 (TD)

MLB headnote and full text

Feherguard Products Limited (plaintiff) v. Rocky's of B.C. Leisure Ltd. (defendant)

(T-1602-86)

Indexed As: Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd.

Federal Court of Canada

Trial Division

Dubé, J.

January 24, 1994.

Summary:

Feherguard sued for infringement of their patent for a pool cover roller assembly. The defendants claimed that the patent was invalid on grounds of lack of utility and ambiguity.

The Federal Court of Canada, Trial Division, dismissed the action for infringement and declared one of the patent's claim invalid and void for lack of utility.

Patents of Invention - Topic 1725

Grounds of invalidity - Lack of utility and operability - Particular patents - The owner of a patent for a telescoping roller for a pool cover sued for patent infringement - The defendant claimed that the patent was invalid for lack of utility - The patent's claim stipulated that the outer and the inner tube of the roller became secured when the uniformly spaced ribs of each tube were aligned radially and engaged - However, the roller could not be used until secured with screws and bolts - The Federal Court of Canada, Trial Division, declared the patent invalid and void where the limitation respecting the screws and bolts was not claimed in the patent - See paragraphs 21, 22.

Patents of Invention - Topic 2926

Infringement of patent - Acts not constituting an infringement - Of particular patents - The owner of a patent for a telescoping roller for a pool cover sued for patent infringement - The patent claim described a telescoping roller member consisting of two or more hollow tubes which telescoped into each other - The claim stipulated that the outer and the inner tube became secured when the uniformly spaced ribs of each were aligned radially and engaged - The defendant's product consisted of nested twelve-sided polygonal shapes - When the vertices of the defendant's product were aligned radially they did not engage and could not be securely fastened until bolted together - The Federal Court of Canada, Trial Division, dismissed the action where the ribs and securing requirement were essential to the claim - See paragraph 1 to 19.

Cases Noticed:

McPhar Engineering Co. v. Sharpe Instruments Ltd. (1960), 35 C.P.R. 105 (Ex. Ct.), refd to. [para. 15].

Martinray Industries Ltd. et al. v. Fabricants National Dagendor Manufacturing Ltd. et al. (1991), 49 F.T.R. 81; 41 C.P.R.(3d) 1 (T.D.), refd to. [para. 15].

Birmingham Sound Reproducers Ltd. v. Collaro Ltd., [1956] R.P.C. 232 (C.A.), refd to. [para. 15].

Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd., [1981] 1 S.C.R. 504; 35 N.R. 390; 122 D.L.R.(3d) 203; 56 C.P.R.(2d) 145, refd to. [para. 21].

TRW Inc. v. Walbar of Canada Inc. (1991), 132 N.R. 161; 39 C.P.R.(3d) 176 (F.C.A.), refd to. [para. 21].

Wandscheer v. Sicard Ltd., [1946] Ex. C.R. 112; 4 C.P.R. 5 (Ex. Ct.), affd. [1948] S.C.R. 1; 8 C.P.R. 35, refd to. [para. 21].

Diversified Products Corp. et al. v. Tye-Sil Corp. (1991), 125 N.R. 218; 35 C.P.R.(3d) 350 (F.C.A.), refd to. [para. 23].

Counsel:

Robert H.C. MacFarlane, for the plaintiff;

Bruce M. Green and Gavin Manning, for the defendant.

Solicitors of Record:

Fitzsimmons, MacFarlane & Harpur, Toronto, Ontario, for the plaintiff;

Barrigar & Oyen, Vancouver, British Columbia, for the defendant.

This case was heard at Vancouver, British Columbia, on January 12-18, 1994, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered judgment on January 24, 1994.