Case Comment

Koehring Canada Ltd. v.
Owens-Illinois Inc.


citation(s): (1980), 52 C.P.R. (2d) 1, (F.C.A. per Le Dain, J.)

copyright 1997 Donald M. Cameron, Aird & Berlis





The invention relates to a vehicle which allows for the harvesting and processing of mature trees in a limited area while the vehicle remains stationary, without the necessity of moving it from tree to tree.

Two companies each applied for a patent on their respective machines. The Patent Office said there was an overlap in the subject matter of the applications and declared a conflict.

The Commissioner concluded that McColl, the inventor of the subject matter of the respondent Owens' application, was the first inventor of the claims in conflict.


The Decision

At p. 2:

"To establish a date of invention prior to the filing date of an application it is necessary to be able to show that the invention was reduced to a practical and definite shape either by a written or oral description of it that would enable a person skilled in the art to make it. It is not necessary to have made an embodiment of a machine to establish a date of invention prior to the date of filing. The making of an embodiment is one means of establishing a date of invention."


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