Larry Bertelsen v. Automated Tank
Manufacturing Inc. Hollick Solar Systems Ltd. and Conserval
Engineering Inc. v. Matrix Energy Inc. McCallum Industries Limited v. HJ Heinz
Company Australia Ltd. Health Canada released a Draft Guidance Document: Guidance Document for
Clinical Trial Sponsors – Clinical Trial
Applications. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
and
Beverley Moore
Actions
Statement of Claim Struck for Deficient Pleading of
Infringement
The Defendant appealed an Order of a Prothonotary, allowing an
amendment of a Statement of Claim. The Court reviewed the
requirements for pleadings in a patent infringement action, and
found that the paragraphs in the Amended Statement of Claim simply
restated the claims of the patent in issue. The Court held that the
pleadings are deficient, and that the Prothonotary erred in
allowing the proposed amendments. The action was dismissed, with
costs to the Defendant.
Motion for Summary Judgment Alleging Inutility
Dismissed
Reinhard Delp v. Fresh Headies Internet Sales
Ltd. et al.
The Plaintiff alleged patent infringement, and the Defendants
raised a number of grounds of invalidity in defence. The Defendants
brought the within motion, seeking summary judgment on the grounds
of inutility.
The Court first noted that there was no evidence provided as to
the understanding of a person skilled in the art of the claims.
Accordingly, the Court was required to construe the claims without
the aid of expert evidence. The Court found that the Defendants
misconstrued the promise of the patent and that a person skilled in
the art would be capable of optimally working the invention through
routine trial and error. The Court held that even if wrong about
the promise of the patent, the evidence was insufficient to warrant
summary judgment.Patent and Trade-Mark Infringement Action Dismissed
The Plaintiffs alleged patent infringement, trade-mark
infringement, passing off and depreciation of the value of the
goodwill in the registered trade-mark.
The patent infringement allegation turned on the determination of
whether an element of the impugned claims is an essential element.
Following the test set out in Improver Corp. v. Remington
when addressing a variant, the Court found that the plaintiffs
failed to meet their burden of proving, on a balance of
probabilities, that the variant does not have a material effect on
the way the system works. The Court then determined that a person
skilled in the art would have understood that the variant in the
Defendant's system would have a material effect, and that
strict compliance was required. Accordingly, the Court found no
infringement of the patent.
The Defendant distributed systems designed by the Plaintiffs
pursuant to various Distributor Agreements for a period of time,
but the Agreement was not renewed. The Plaintiffs alleged that the
trade-mark remained on the Defendant's website, and in various
publications beyond the end of the Agreement. The Court found that
the trade-mark was used by the Defendant on three occasions, but
this use was not to represent the Defendant's system as that of
the Plaintiffs. The Court therefore found no infringement, no
passing-off and no depreciation of goodwill.Other Cases of Interest
Application to Expunge Trade-Mark Dismissed
The Applicant filed a Notice of Application, seeking to expunge the
Respondent's trade-mark "OX & PALM". The
Applicant has a registration for the trade-mark "PALM &
Device".
The Court first considered the Respondent's argument that the
Applicant is not a "person interested", as required by
the Trade-marks Act. The Court noted that the Applicant
must establish that it will be affected or reasonably apprehends
that it may be affected by the impugned trade-mark. Further, the
Applicant must show that it would suffer damage if the trade-mark
remained on the Register. The Court held that there was no such
evidence in the within case. However, the Court noted that the
"person interested" threshold is low, and accordingly
considered the Applicant's arguments supporting its request for
expungement.
The Court considered whether the two trade-marks are confusing and
after reviewing the factors in section 6(5) of the Trade-marks
Act as well as additional circumstances, the Court concluded
that any similarities between the two trade-marks were insufficient
to support a finding of confusion. In response to the
Applicant's argument that the OX & PALM trade-mark was not
distinctive at the time the within application was commenced, the
Court found that it was "adapted so as to distinguish".
Accordingly, the Court dismissed the application.Other Industry News
Canada: Intellectual Property Weekly Abstracts Bulletin - Week Of November 7, 2011
Last Updated: November 14 2011
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