Case Comment

Canadian Gypsum Co. Ltd. v. Gypsum, Lime & Alabastine Canada Ltd.


citation(s): [1931] Ex. C.R. 180 (Ex. Ct. per Maclean J.)

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p. 187:

"The question for determination here is one of fact, and that is whether or not there is invention. It appears to me that the plaintiff's patent cannot be supported for want of subject matter. Thermofill has utility but, I think, only a comparative utility, a possible increase in utility over some other known insulating material. But utility is not an infallible test of originality. To support a valid patent there must be something more than a new and useful manufacture, it must have involved somehow the application of the inventive mind; the invention must have required for its evolution some amount of ingenuity to constitute subject matter, or in other words invention. Fortunately the law does not authorize the granting of a monopoly for everything that is new and useful. The design of the patent law is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in advance in the useful arts. If there is no novelty there can of course be no inventive ingenuity, but if there is novelty in the sense required in the law of patents, it must be the product of original thought or inventive skill. As stated in the cases, the inventive ingenuity necessary to support a valid patent may be found in the underlying idea, or in the practical application of that idea, or in both. It may happen that the idea or conception is a meritorious one, but that once suggested, its application is very simple. Again, it may be that the idea is an obvious one, but the ingenuity is required to put it into practice. Or, again, the idea itself may have merit and the method of carrying it into practice also require inventive ingenuity. In all these respects, I think, the alleged invention in this case fails. I cannot see how there can be invention in the idea of combining ground calcined gypsum with shredded paper stock, and blending them together, and after all that is the essential feature of the alleged invention."


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