Case Comment

AlliedSignal Inc. v.
Du Pont Canada Inc., et al

citation(s): (1994) 54 C.P.R. (3d) 351 (F.C.T.D. per Reed J.)

copyright 1997 Donald M. Cameron, Aird & Berlis




After a trial for patent infringement, the trial judge, in her reasons, held that a patent was partly valid and partly invalid. This decision expresses her reasons for phrasing the Judgment in this manner.

On appeal, her judgment was set aside.

The Decision

At p. 351-2

“On September 3, 1993, reasons for judgment were issued in this case. Counsel were invited to submit a draft order for my consideration. This was subsequently done and submissions were heard from counsel, in chambers, with respect to the draft judgments which had been submitted. The main issue in contention is whether I can issue an order which declares part of the claim invalid but not the whole thereof .

In the reasons for judgment, I indicated that the claims were invalid insofar as the use of polyhexamethylene adipamide as the polyamide component was concerned. Polyhexamethylene adipamide (nylon 6,6) is the nylon used by the defendants. I was referred to no authority which says that that kind of an order is improper. Nor, was I referred to any authority which says that it is proper. Counsel for the defendants referred to the jurisprudence concerning what is usually called the "Gillette defence" as indicating that the whole claim should be declared invalid. He also referred to the off quoted analogy of a claim to a fenced field.

In my treatment of the claim, there is no doubt that I am reasoning by analogy to the doctrine of severance which applies in constitutional law to legislative texts. In the present case the claims with respect to the two products, insofar as defining crystallinity is concerned, are not meshed together. They are quite separate and distinct and can easily be read to exclude the reference to polyhexamethylene adipamide. As a matter of equity, while the patent claim with respect to the nylon which the defendant uses cannot stand because of insufficient disclosure, I can see no good reason why the plaintiff should lose its patent over the nylon which it uses and for which there was sufficient disclosure.

For the reasons given an order will issue declaring the patent invalid insofar as it purports to relate to the use of polyhexamethylene adipamide as the polyamide component."

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