Case Comment

The King v.
Uhlemann Optical Co.

citation(s): (1951), 15 C.P.R. 99 (S.C.C.)

copyright 1997 Donald M. Cameron, Ogilvy Renault LLP




The Decision

At p.103-104

"With this interpretation of the specification and of the claims it is clearly shown that Uhlemann's invention consists of a combination and it matters not, therefore, whether, as contended by counsel for the appellant, the elements thereof are old and were already known in the art as separate entities. As was pointed out by this Court in Baldwin International Radio Co. of Canada Ltd. v. Western Electric Co. Inc. et al. [1934] S.C.R. 94 at 101, "On this branch of the case, viz.: anticipation, the only point is whether the actual combination is new"... "It is idle to repeat that anticipation is not established by what may be qualified the `imaginary assemblage' of separate elements gathered from glosses selected here and there in several and distinct anterior specifications." The invention lies in the particular combination, provided it is not a mere aggregation or a juxta-position of known contrivances."

At p. 104:

"... no anticipation had been established because none of these anterior patents, for purposes of practical utility, were equal to that given by the patent in suit;"

At p. 104:

"... Whatever is essential to the invention or necessary or material for its practical working and real utility must be found substantially in the prior publication."




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