Case Comment

Globe Union Inc. v.
Varta Batteries Ltd.

citation(s): (1981), 57 C.P.R. (2d) 132 per Mahoney J.

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p.146

`In each case the substance, or principle, of the invention and not the mere form is to be looked to. It has been stated in many cases that if an infringer takes the principle and alters the details, and yet it is obvious that he has taken the substance of the idea which is the subject matter of the invention, and has simply altered the details, the Court is justified in looking through the variation of details and see that the substance of the invention has been infringed and consequently can protect the inventor. And the question is not whether the substantial part of the machine or method has been taken from the specification, but the very different one, whether what is done by the alleged infringer takes from the patentee the substance of his invention.'

At p.146

"In my view, the defendant has appropriated the invention of the connection patent. The refinement of creating the projections during the "squeeze" stage may well be a significant improvement of the patented method but that is what it remains; it is not a new or different method. The substance of the patented method remains in the defendant's method. As has been said, perhaps more colourfully than the present situation warrants, [Wenham Gas Co., Ltd. v. Champion Gas Lamp Co. (1891), 9 R.P.C. 49 at p. 56]

"... if the pith and marrow of the invention is taken it is no excuse to say that you have added something, or omitted something, even if the addition or omission be useful and valuable. The superadding of ingenuity to a robbery does not make the operation justifiable."


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