Case Comment

Samson-United of Canada, Ltd. et al. v. Canadian Tire Corporation, Ltd.

[1939] Ex. C.R. 277, [1939] 3 D.L.R. 365;
[affirmed [1940] 3 D.L.R. 64, [1940] S.C.R. 386] per MacLean, J.

copyright 2006 Donald M. Cameron




The Decision

At p. 281:

But it is possible that use of one material in lieu of another, in the formation of a manufacture, may be the subject of a patent.  If such substitution involves a new mode of construction, or develops new uses and properties of the article formed, it may amount to invention.  Where there is some new and useful result, where a machine has acquired new functions and useful properties, it may be patentable as an invention, though the only substantial change made in the machine has been supplanting one of its materials by another. Robinson on Patents at p. 302 states, I think, the true principle to be applied in such cases. He says: "In manufactures and machines, any material capable of receiving and retaining the forms of their essential parts is usually sufficient for the performance of their functions, and the expression of their idea of means. A change in such materials may effect the durability of the instrument, or the perfection with which it produces its results, but these attributes relate to the form of embodiment alone, not to the essence of the invention.  Yet if diversity of the material employed requires a new mode of construction, or develops new capacities in the invention, as indicated either in the instrument itself or its effects, the change is one of substance and produces an improvement or a new invention.


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