Reading & Bates Construction Co. et al v.
copyright 1997-2007 Donald M. Cameron
At p. 430
The defendants in action T-1879-83 further contend that patent No. 1,037,462 is invalid because the fifth paragraph of claim 1, quoted above, refers to thrusting the liner into the ground "to follow, said drill string and not direct said drill string". It is contended that this does not comply with the requirements of s.s. 36(2) of the Patent Act which requires that the claims state "distinctly and in explicit terms" the things in which the inventor claims exclusive property. While other ambiguities were pleaded, counsel for the defendants relied only on this phraseology as begin sufficiently unclear to invalidate the patent. It should first be noted that the court should not be quick to find such ambiguity as will invalidate a patent, and should refuse to do so where a claim can with some effort be construed in a meaningful way: see, eg., Procter & Gamble Co. v. Bristol-Meyers Canada Ltd. (1979), 42 C.P.R. (2d) 33 at pp. 37-8, 28 N. R. 273 (F.C.A.). Notwithstanding the obscurities suggested by the export witness, I have little difficulty in the context in which this phrase appears in giving it an understandable meaning. I construe it to mean that the follow liner is thrust in such a way that its lead end does not extend beyond the drill head at any time; that it is the drill string as controlled by the rig operator that determines the direction of the hole and that the follow liner, by the fact that it never precedes the drill head, only "follows" the direction of the hole as determined by the drill string. This being the case, it is clear that the direction which the follow liner takes does not control the direction which the drill string takes, but quite the reverse. The fact that the presence of the follow liner assists the rig operator to direct the drill string by reducing the friction around the drill string - a fact which is not mentioned in the claim and therefore does not create an ambiguity on the face of the claim - does not make the follow liner the direction setting instrument. I therefore am unable to find that there is any failure to comply with s. 36 of the Patent Act so as to render patent No. 1,037,462 invalid.
At p. 430-431
"It should first be noted that the court should not be quick to find such ambiguity as will invalidate a patent, and should refuse to do so where a claim can with some effort be construed in a meaningful way: see, e.g., Procter & Gamble Co. v. Bristol-Myers Canada Ltd. (1979), 42 C.P.R. (2d) at pp. 37-8, N.R. 273 (F.C.A.)."
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