Mentmore Manufacturing Co. and Rotary Pen Corp. v. National Merchandise Manufacturing Co. et al., (1978) 22 N.R. 161 (FCA)

• Judge: Urie, Ryan and Le Dain, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 30, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 22 N.R. 161 (FCA)

Mentmore Mfg. Co. v. Nat. Merchandise (1978), 22 N.R. 161 (FCA)

MLB headnote and full text

Mentmore Manufacturing Co., Limited and Rotary Pen Corp. v. National Merchandise Manufacturing Co. Inc. and Goldenberg

(No. A-214-74)

Indexed As: Mentmore Manufacturing Co. and Rotary Pen Corp. v. National Merchandise Manufacturing Co. et al.

Federal Court of Appeal

Urie, Ryan and Le Dain, JJ.

June 30, 1978.

Summary:

This headnote contains no summary.

Patents of Invention - Topic 3046

Infringement of patent - Persons liable - Liability of officer of company - The plaintiffs brought an action for patent infringement against a company owned by two shareholders and also against one of the shareholders, who was the president of the company - The president directed the day to day operations of the company, including the manufacture of retractable point pens, which infringed the plaintiffs' patent - The trial judge allowed the action against the company, but dismissed the action against the president personally - The Federal Court of Appeal affirmed the dismissal of the action against the president of the company - The Federal Court of Appeal held that the test of personal liability of an officer of a company for patent infringement was whether it was reasonable to conclude that the purpose of the officer was not the direction of the manufacturing and selling activity of the company in the ordinary course of his relationship to it, but the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it.

Cases Noticed:

Performing Right Society v. Ciryl Theatrical Syndicate, [1924] 1 K.B. 1, consd. [para. 21].

Reitzman v. Grahame-Chapman and Derustit Ltd. (1950), 67 R.P.C. 178, affd. 68 R.P.C. 25, dist. [para. 25].

T. Oertli A.G. v. E.J. Bowman (London) Ltd. et al., [1956] R.P.C. 282, dist. [para. 25].

Yuille v. B. & B. Fisheries (Leigh), Ltd. and Bates, [1958] 2 Lloyd's Rep. 596, dist. [para. 25].

Wah Tat Bank Ltd. v. Chan Cheng Kum, [1975] A.C. 507, dist. [para. 25].

Dangler v. Imperial Mach. Co., 11 F.(2d) 945, appld. [para. 26].

Panther Pumps & Equipment Co. Inc. v. Hydrocraft, Inc., 468 F.(2d) 225 (1972), folld. [para. 27].

Southwestern Tool Co. v. Hughes Tool Co., 98 F.(2d) 42, folld. [para. 27].

Authors and Works Noticed:

Deller's Walker on Patents (2nd Ed. 1972), vol. 7, pp. 117-118 [para. 28].

Halsbury's Laws of England (3rd Ed.), vol. 29, p. 90, para. 192 [para. 22].

Counsel:

Malcolm E. McLeod and Robert Brouillette, for the appellants;

G. Alexander Macklin, for the respondents.

This case was heard on February 28, 1978, at Ottawa, Ontario, before URIE, RYAN and LE DAIN, JJ., of the Federal Court of Appeal.

On June 30, 1978, LE DAIN, J., delivered the following judgment for the Federal Court of Appeal: