Leithiser & Timberland v. Pengo, (1974) 6 N.R. 301 (FCA)

JudgeJackett, C.J., Thurlow, J. and MacKay, D.J.
CourtFederal Court of Appeal (Canada)
Case DateNovember 22, 1974
JurisdictionCanada (Federal)
Citations(1974), 6 N.R. 301 (FCA)

Leithiser & Timberland v. Pengo (1974), 6 N.R. 301 (FCA)

MLB headnote and full text

Leithiser and Timberland Ellicott Ltd. v. Pengo Hydra-Pull of Canada Ltd.

Indexed As: Leithiser and Timberland Ellicott Ltd. v. Pengo Hydra-Pull of Canada Ltd.

Federal Court of Appeal

Jackett, C.J., Thurlow, J. and MacKay, D.J.

November 22, 1974.

Summary:

This case arose out of a claim for the infringement of a patent. The plaintiff claimed that the defendant infringed his patent with respect to a machine for obtaining uniform tension in electrical cable installations. The Trial Division of the Federal Court of Canada dismissed the plaintiff's action and declared the plaintiff's patent invalid. The judgment of the Trial Division is not reported in the series of reports.

On appeal to the Federal Court of Appeal the appeal was dismissed and the judgment of the Trial Division was affirmed. The Federal Court of Appeal referred to the plaintiff's specifications and claims and held that the plaintiff's claims claimed more than he invented and accordingly the patent was invalid.

Patents of Invention - Topic 1130

The specification and claims - The claim - Claims for more than what was invented - The plaintiff commenced an infringement of patent action respecting a machine for obtaining uniform tension in electrical cable installations - The Federal Court of Appeal affirmed a dismissal of the plaintiff's action - The Federal Court of Appeal interpreted the specification and claims and held that the plaintiff's patent claims claimed more than he invented and accordingly the patent was invalid.

Patents of Invention - Topic 1126

The specification and claims - The claims - General principles - The Federal Court of Appeal stated that the claims define in precise terms the boundaries of that which the inventor asserts as his claim to an exclusive privilege - See paragraph 8.

Patents of Invention - Topic 3664

Infringement actions - Pleadings - Defence - Pleading a lack of invention and the state of the "prior art" - The Federal Court of Appeal stated that the "state of the art" is a question of fact which should be pleaded - See paragraph 13.

Cases Noticed:

Radio Corporation of America v. Roytheon Mfg. Co., 16 Fox Pat. C. 122, folld. [para. 5].

Smith Incubator Company v. Albert Seiling, [1936] S.C.R. 251, folld. [fn. 1].

Commissioner of Patents v. Farbwerke Hoechst Aktiengesellschaft Vormals Meister Lucius & Bruning, [1964] S.C.R. 49, folld. [para. 13].

Statutes Noticed:

Federal Court Rules, rule 428 [para. 15].

Counsel:

R.G. McClenahan, Q.C. and A.M. Butler, for the appellants;

I. Goldsmith, Q.C. and D.J. Bellehumeur, for the respondent.

This appeal was heard by the Federal Court of Appeal at Ottawa, Ontario on November 18, 19, 20, 21 and 22, 1974. Judgment was delivered by the Federal Court of Appeal on November 22, 1974 and the following opinions were filed:

JACKETT, C.J. - see paragraphs 1 to 15.

THURLOW, J. - see paragraphs 16 to 34.

MACKAY, D.J., concurred with both JACKETT, C.J. and THURLOW, J.

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