McCain Foods Limited v. J.R. Simplot Company, 2021 FCA 4

Justice Mactavish; Justice Near; Justice Locke - 2021-01-14

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This decision concerns two appeals from a decision of the Federal Court (2019 FC 1635) which allowed in part an appeal of a decision of Prothonotary Aylen (the Prothonotary) in the context of a patent infringement action. In the action, McCain alleges that Simplot infringe the Patent. Specifically, McCain alleges that Simplot’s use of a system that uses a pulsed electric field (PEF) to reduce the resistance of frozen fruits and vegetables to cutting after they are cooked infringes the Patent. ... Simplot may be able to benefit from an inference that there is some sort of arrangement or understanding between McCain and Elea amounting to a license. Such an inference could be based on the allegation that McCain, knowing of Elea’s ongoing allegedly infringing activities, not only did nothing to stop it, but actually encouraged it by entering into a transaction with Elea to purchase the very PEF systems in controversy. ... These are not intended as conclusions on the merits of Simplot’s implicit license defence. But they do amount to a conclusion that Simplot should be allowed to argue this defence. ... The principal dilemma for Simplot is that, either Simplot does not infringe McCain’s patent (in which case it will have no liability to McCain that could ground a claim against Elea), or Simplot does infringe (in which case it cannot claim to be a person claiming under the patentee, and hence lacks standing to sue).

Decision relates to:


Canadian Intellectual Property