Case Comment

TRW Inc. v.
Walbar of Canada Inc.

citation(s): (1991), 39 C.P.R. (3d) 176 (F.C.A. per Stone J.A.)

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p.196:

"I turn then to examine the specifies of the remaining attacks. The first is that the disclosure is insufficient because it lays down a "false trail" in a passage at p. 4 of the specification, lines 8-14 (p. 4, ante p. 181), which described the method of sinking cavities by giving as an example "cavity sinking by electro-chemical metal removal ... disclosed in U.S. Patent No. 3,058,895". I agree with TRW that because the so-called "false trail" was not expressly pleaded, this argument is not available to Walbar. As it represented a major attack on the validity of the Patent, it should have been expressly pleaded. To my mind, the views of Lord Normand as to the value of pleadings, in Esso Petroleum Co. v. Southport Corp., [1956] A-C. 218 (H.L.) at p. 239, are applicable. He stated:

I wish to associate myself with the observations of my noble and learned friend, Lord Radcliffe, on the value of the pleadings. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.


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