Canmar Foods Ltd. v. TA Foods Ltd., 2019 FC 1233

Justice Manson - 2019-09-25

Read full decision. Summary prepared by Alan Macek:

The Defendant submitted that the construction of the ‘376 Patent claims is appropriate for a motion for summary judgment. ... The essence of the Defendant’s argument is that its oil seed roasting or cooking process falls outside the claims of the ‘376 Patent, when properly construed. ... The Defendant’s view is that the prosecution history of the ‘405 Application establishes that the “stream of air” and “insulated roasting chamber or tower” limitations were added to overcome prior art cited by the USPTO. ... The language of section 53.1 is limited to communications between the patentee and the Canadian Patent Office, and generally should be applied in that context. However, in this case, I find that the patentee specifically referred to the corresponding US Application prosecution history and acknowledged that the amendments to the claims in the ‘376 file history were made to overcome novelty and obviousness concerns as raised in the US Application prosecution history. Accordingly, the Court may look at the US Application prosecution history as part of a purposive construction of the claims of the ‘376 Patent. ... That said, the Court may in any event construe Claim 1 of the ‘376 Patent and find no infringement, based on the evidence of the process used by the Defendant as described in the Popowich Affidavit and the cross-examination on that affidavit. ... Based on the claim, the disclosure, and the prosecution history of the ‘376 Patent, I find that expert evidence is not required for me to be able to purposively construe the two elements of Claim 1 that are at issue.... In conclusion, two essential elements of Claim 1, namely heating oil seed “in a stream of air” and an “insulated or partially insulated roasting chamber or tower,” are not included in the Defendant’s flax roasting process. ... Based on this finding, there is no genuine issue for trial, and the Defendant’s motion for summary judgment is granted.

Decision relates to:

  • T-2138-18 - CANMAR FOODS LTD. v. TA FOODS LTD.


Canadian Intellectual Property