Kramer et al v.
copyright 1997 Donald M. Cameron, Aird & Berlis
"...To determine commercial success, success in the whole world may be considered. See Omark Industries (1960) Ltd. v. Gouger Saw Chain Co. et al (1964) 45 C.P.R. 169 at p. 188 and pp. 191-2,  Ex. C.R. 457, 27 Fox Pat. C. 1. The evidence was that between 1960 and 1972, the plaintiffs had sold, in the United States and Canada, over two hundred million clips and that three of the six companies building aluminum furniture in Canada were using the plaintiffs' clips, the defendant being one of the other three companies using other clips. This evidence of immediate commercial success reinforces the other evidence to the effect that there was a need to be filled in that particular area of industry. The novelty results from the combination, the utility is established by the previous long-felt want and resulting commercial success which is also clear evidence of the ingenuity of the invention. I, therefore, find that the inventive and that the plaintiffs' patents were valid."
"The claims should be interpreted by reading them and applying common vocabulary of the art to the wording of the claim. They should be interpreted as if read by a person who is possessed of all the technical knowledge required to fully understand the terms used and the principles involved. The specifications and drawings should be read as a whole to provide background to assist in the interpretation of the claim but should not be used to vary or enlarge the claims, except in so far as the vocabulary, as supplied by the specifications, reasonably and fairly provides for such a variation or enlargement. As has been often stated, the patent may act as his own lexicographer. Refer David Kahn Inc. v. Conway Steward & Co. Ltd. et al  F.S.R. 620 (Ch. D.) per B.W. Buck, Q.C.; Minerals Separation North American Co. v. Noranda Mines, Ltd., (supra), at pp. 319-20 and Omark Industries (1960) Ltd. v. Gouger Saw Chain Co. et al., supra, at pp. 197-8. In the light of these general principles, the text of the claims of the plaintiffs' two patents must be examined to see, first, if there has been a literal infringement of the patents as expressed in the claims and, if not, then whether there has nevertheless been a true infringement of the substance of the inventions."
At p. 239-240:
"Although there is no literal infringement, the Court must also determine whether the variations are minor ones and whether the alleged infringer has in fact taken the substance of the invention, refer Omark Industries (1960) Ltd. v. Gouger Saw Chain Co. et al., supra; whether the object under attack is but a colourable imitation of the invention, refer Fox's Canadian Law and Practice Relating to Letters Patent for Inventions, 4th ed. (1972), at pp. 364-9 and whether the defendant has in effect taken what has been described in the cases as the pith and marrow of the patent or invention, refer Moffatt v. Leonard (1905), 5 O.W.R. 259 at p.260 and Riddell v. Patrick Harrison & Co. Ltd. (1957), 28 C.P.R. 85 at pp. 116-7, [1956-60, Ex. C.R. 213, 17 Fox Pat. C. 83. The onus in these matters being on the person alleging would, of course, be on the plaintiffs.
To determine these questions one must obviously look beyond the mere physical aspect of appearance of the invention and the alleged offending article and consider the manner in which both operate or are intended to operate, for it might well happen that two articles may bear considerable physical resemblance, yet, by reason of what might appear to be a minor physical different, they might in fact operate in a completely dissimilar manner and employ totally different physical and mechanical principles. The opposite might also well be true and an impression that one is viewing two quite dissimilar objects might in effect be created by a very clever camouflaging of an object, where its basic functional elements are in fact being copied, reproduced and employed."
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