Grand Tank (International) Inc. v. Brown

Grand Tank (International) Inc. v. Brown

Summary judgment was denied because the plaintiffs had established before the Court that the Canadian Intellectual Property Office had been persuaded that a person skilled in the art would read the original disclosure as supporting the reissued claims and because resolving competing factual or expert evidence requires a trial; conversely, leave to examine non‑parties McGruder and Manning was granted because they likely possess relevant information, defendants could not obtain it by other reasonable means, fairness required the opportunity to question them, and such questioning would not cause undue delay or expense.

Citation
2004 FC 1355
Parties
Plaintiff/defendant by Counterclaim: Grand Tank (International) Inc.; Plaintiff/defendant by Counterclaim: Davlin Holdings Ltd.; Defendant/plaintiff by Counterclaim: Earl Brown; Defendant/plaintiff by Counterclaim: North Pine Rentals Ltd.; Defendant/plaintiff by Counterclaim: Donalda Mary Cochrane
Court
Federal Court
Jurisdiction
Canada
Judgment Date
1 October 2004
Procedural Posture
Patent Validity / Re‑issue Under the Patent Act / Motion for Summary Judgment and Motion for Leave to Examine Non‑parties (rule 238) Heard on September 27, 2004
Outcome
Defendants' motion for summary judgment dismissed; Defendants' motion for leave to examine non‑parties granted; each party to bear their own costs of the motion
Legal Topics
Patent Re‑issue Under S.47 Patent Act, Summary Judgment (federal Court Rules 213, 216), Examination for Discovery of Non‑parties (rule 238), Solicitor‑client Privilege
Source Language
English
Intellectual Property Civil Procedure Evidence Discovery Patent Re‑issue Under S.47 Patent Act Summary Judgment (federal Court Rules 213,216) Examination for Discovery of Non‑parties (rule 238) Solicitor‑client Privilege

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Grand Tank (International) Inc.

Plaintiff/defendant by Counterclaim

Davlin Holdings Ltd.

Plaintiff/defendant by Counterclaim

Earl Brown

Defendant/plaintiff by Counterclaim

North Pine Rentals Ltd.

Defendant/plaintiff by Counterclaim

Donalda Mary Cochrane

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Validity / Re‑issue Under the Patent Act / Motion for Summary Judgment and Motion for Leave to Examine Non‑parties (rule 238) Heard on September 27, 2004

Legal Issues

  1. 1 Whether the re‑issuance of Patent No. 2,219,053 complied with s.47 of the Patent Act and thus whether the plaintiffs' claim is so doubtful that summary judgment dismissing the action is appropriate
  2. 2 Whether leave should be granted under Rule 238 to examine non‑parties (patent agents/solicitors) McGruder and Manning
  3. 3 Whether solicitor‑client privilege prevents examination of those non‑parties

Ratio Decidendi

Summary judgment was denied because the plaintiffs had established before the Court that the Canadian Intellectual Property Office had been persuaded that a person skilled in the art would read the original disclosure as supporting the reissued claims and because resolving competing factual or expert evidence requires a trial; conversely, leave to examine non‑parties McGruder and Manning was granted because they likely possess relevant information, defendants could not obtain it by other reasonable means, fairness required the opportunity to question them, and such questioning would not cause undue delay or expense.

Court Disposition

Defendants' motion for summary judgment dismissed; Defendants' motion for leave to examine non‑parties granted; each party to bear their own costs of the motion

Orders

  • Defendants' motion for summary judgment dismissing the action against them is dismissed
  • Order pursuant to Rule 238 granting the Defendants leave to examine for discovery David McGruder and Gavin (Gavin) Manning (or either of them)