Permacon Québec Inc. v. Entreprises Arsenault & Frères Inc., (1987) 17 F.T.R. 1 (TD)

• Judge: Dube, J.
• Court: Federal Court (Canada)
• Case Date: October 21, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 17 F.T.R. 1 (TD)

Permacon Que. Inc. v. Arsenault & Freres (1987), 17 F.T.R. 1 (TD)

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Permacon Quebec Inc., formerly Le Bloc Vibre Quebec Inc. (plaintiff) v. Les Entreprises Arsenault & Freres Inc. (defendant) and S.F. Vollverbundstein Kooperation GmbH (mis-en-cause)

(No. T-1542-83)

Indexed As: Permacon Québec Inc. v. Entreprises Arsenault & Frères Inc.

Federal Court of Canada

Trial Division

Dube, J.

November 12, 1987.

Summary:

The plaintiff held a patent on a retaining wall constructed of specially shaped concrete blocks. The plaintiff brought a patent infringement action against the defendant, who manufactured and sold identical blocks. The defendant admitted that its blocks were the same as described in the claims of the patent, but denied infringement on the ground that the patent conferred on the plaintiff a monopoly only respecting the wall itself. The plaintiff applied under rule 474 for a preliminary determination as to whether the defendant's acts infringed the patent.

The Federal Court of Canada, Trial Division, held that the defendant did not infringe the patent, because the patent conferred a monopoly only on the wall.

Patents of Invention - Topic 1129

Specification and claims - The description - Scope of invention - The plaintiff held a patent on a retaining wall constructed of specially shaped concrete blocks - The plaintiff claimed a monopoly on both the wall and the component blocks - The Federal Court of Canada, Trial Division, held that the wording of the claims of the patent read clearly to restrict the monopoly to the retaining wall itself - The court held that an exclusive right over the shape of the blocks was not claimed for by the wording of the claims of the patent - The court rejected the drawing of an analogy to a "Jepson" type claim to bring the blocks within the claims of the patent - See paragraphs 1 to 21.

Patents of Invention - Topic 2890

Infringement of patent - Acts constituting - Inducing infringement - The plaintiff held a patent for a retaining wall made up of specially shaped concrete blocks - The patent conferred a monopoly for the retaining wall, but not the blocks themselves - The defendant manufactured and sold identical blocks - The plaintiff claimed that the defendant induced others to infringe the patent by buying the defendant's blocks and constructing a retaining wall protected by the patent - The Federal Court of Canada, Trial Division, held that it was not established that any purchaser used the blocks to infringe the plaintiff's patent; there was also no evidence that if such infringement occurred that it was knowingly induced by the defendant - See paragraphs 22 to 29.

Cases Noticed:

Rucker Co. et al. v. Gavel's Vulcanizing Ltd., 6 C.I.P.R. 137, refd to. [para. 10].

Barnett-McQueen Company Limited v. Canadian Stewart Company Limited (1910), 13 Ex. C.R. 186, refd to. [para. 15].

Electric & Musical Industries Ltd. et al. v. Lissen (1939), 56 R.P.C. 23, refd to. [para. 15].

Samuel Mailman and Others v. Gillette Safety Razor Co. of Canada Ltd., [1932] S.C.R. 724, refd to. [para. 15].

Lynch v. John Phillips & Co. (1909), 26 R.P.C. 389, refd to. [para. 16].

Ex parte Jepson, [1917] Ch. D. 62, refd to. [para. 17].

Wells Mfg. Corp. v. Littlefuse Inc. (1977), 192 U.S.P.Q. 256, refd to. [para. 19].

Copeland-Chatterson Company v. Daniel Hatton et al. (1906), 10 Ex. C.R. 224, refd to. [para. 23].

Slater Steel Industries Ltd. et al. v. R. Payer Co. Ltd. et al. (1968), 55 C.P.R. 61, refd to. [para. 25].

Statutes Noticed:

Federal Court Rules, rule 474 [para. 1].

Authors and Works Noticed:

Walker on Patents (1985), vol. 3, p. 413 [para. 17].

Patent Office Guidelines for Drafting a Model Patent Application (1969) [para. 19].

Counsel:

Ronald Fecteau, for the plaintiff;

Franeois Grenier and Maurice Archambault, for the defendant.

Solicitors of Record:

Monty, Coulombe, Sherbrooke, Quebec, for the plaintiff;

Leger, Robic and Richard, Montreal, Quebec, for the defendant.

This application was heard on October 21, 1987, at Montreal, Quebec, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on November 12, 1987.