#CLASS ACTIO SUIT AGAINST AUTHOR INCUBATOR TRIAL#
, with which I have also formally concurred but, having regard to the judgment of the learned trial judge now under 2 and in the present appeal in which I have formally concurred, as well as with those of Mr. Justice Rinfret in his reasons for judgment in The King v. for the appellant.ĭuff C.J.-I am in complete agreement with Mr. By the judgment now reported, this Court dismissed the plaintiff’s appeal on the ground of invalidity of the patent, in accordance with its decision in The King v. dismissed the action on the ground that there was no infringement.
The action was for a declaration, injunction, etc., and damages for alleged infringement of plaintiff’s rights under certain letters patent for alleged new and useful improvements in incubators. in the Exchequer Court of Canada dismissing its action. It was pointed out that, in construing and applying judgments on such subjects, it is important that the judgment be read as a whole, and, still more, that it be read in light of the issues of fact and questions of law to which the judge is addressing himself.ĪPPEAL by the plaintiff from the judgment of Angers J. with regard to pertinent principles as to the requisites of a specification, the construction of claims, what constitutes the essence of infringement, and grounds on which a plaintiff in an action for alleged infringement may fail, having regard to the claims or to the specification as a whole. They must be construed in the light of the rest of the specification that is to say, the specification must be considered in order to assist in comprehending and construing the meaning-and possibly the special meaning-in which the words or the expressions contained in the claims are used but, on the issue either of validity or of infringement, the criterion must be determined according to the scope of the monopoly as expressed in the claims (though it is not necessary, to justify a holding of infringement, that the infringing article be found identically, or in every respect, the same as the patented article it is sufficient if the infringer has borrowed the substance or spirit of the invention as it can be ascertained from the claims, except in details which could be varied without detriment to the successful working of it).ĭiscussion by Duff C.J. The claims at the end of the specification in a patent must be regarded as definitely determining the scope of the patent monopoly, having regard to the due and proper construction of the expressions they contain. in the Exchequer Court of Canada, dismissing the action on the ground of no infringement) must be dismissed. et al., supra, and on this ground the plaintiff’s appeal (from the judgment of Angers J. Held: The issue as to the validity of the plaintiff’s patent must follow the decision, against the validity of the patent, in The King v. et al., ante, p., and, so far as it applied, the evidence in that case was made part of the evidence in the present case.
The action was for damages, etc, for alleged infringement of the same patent that was considered in the judgment of this Court in The King v. Patent-Validity-Claims-Construction of claims-Determining scope of patent monopoly-Matter embraced in the claims-Specification-Infringement.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA and Rinfret, Davis, Kerwin and Hudson JJ. The Smith Incubator Company (Plaintiff) Appellant
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