NuWave Industries Inc. v. Trennen Industries Ltd., 2020 FC 867

Justice Little - 2020-08-28

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This is a patent case. On this motion, the plaintiff NuWave Industries Inc. (“NuWave”) seeks default judgment against the defendant under Rule 210 of the Federal Courts Rules (SOR/98-106). For the reasons that follow, the motion must be dismissed on the evidence in the current record. ... In the circumstances, I conclude that it is inappropriate to use the evidence in Mr Illingworth’s affidavit to construe the claims in the patent. In any event, however, I do not find his affidavit to be of much assistance, given that its main contribution to understanding and construing the claim was to advise that a POSITA would understand the terms in the patent, without actually explaining the terms to the court (with one exception). While his annotations of the two Trennen Device photographs might assist in understanding and construing claim 1 of the patent, to do so would cross the line into an inappropriate use of an inventor’s evidence. ... Without additional evidence to address these two concerns, I am not able to determine a satisfactory quantum for an accounting of profits.

Decision relates to:



Canadian Intellectual Property