Case Comment

Lightening Fastener Company, Limited v.
Colonial Fastener Company, Limited et al

citation(s): [1933] S.C.R. 377 (Ex. Ct. per Rinfret, J.)

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p.381

"The lugs described by Fontaine have complete identity of function with those claimed by the appellant; and they perform that function substantially in the same way. Nor does it matter whether the appellant's article is a modification of the Fontaine device, which it is not necessary to discuss. (Panyard Machine & Mfg. Co. v. Bowman [1926] Ex. C.R. 158; MacLaughlin v. Lake Erie & Detroit River Ry. Co. (1902) 3 Ont. L.R. 706. In Fontaine's, as well as in the appellant's and the respondent's devices, the idea is the same and there is substantial identity in the means of carrying it out. In our view, the difference is a mere variation of details. In Fontaine's, the lugs engage the fastener elements immediately above the conical sides of the slider. In the appellant's, the lugs reach the elements though a recess or a hole in the central part of the slider; in Prentice's, they reach the elements immediately below the slider. The appellant alleged and brought evidence to show that Prentice's was an infringement of its patent. We may assume that the contention is right. But what amounts to infringement, if posterior, should, as a general rule, amount to anticipation, if anterior. Fontaine's disclosure having been patented in France on the 5th of March, 1924, or more than two years prior to the application of the appellant in Canada, this affords sufficient ground for displacing the appellant's patent (Patent Act, sec. 7), which must therefore be declared valid."


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