Zacon Limited v. Provincial Doors Inc., 2025 ONSC 2954
2025-05-20
Read full decision. Summary prepared by Alan Macek:
In this action, Zacon alleges patent infringement by Provincial and Pretium and claims damages, including an accounting of profits from them. ... Provincial, Pretium and Carr all assert affirmative defences that Zacon’s patent is invalid on the grounds of anticipation and obviousness. Zacon says these defences have been determined by a final decision of a Patent Re-Examination Board as not sustainable and that the pleadings asserting this defence should be struck as an abuse of process. ... The plaintiff says that Provincial chose the re-examination process as its forum, it lost, and it should not be allowed another bite at the cherry, particularly when the decision of the re-examination board is final and not subject to appeal. ... Even if I was to find that the request for re-examination decision addressed the question of validity of the patent, I am of the view that it is not an abuse of process to allow these defences to be pleaded and determined in this action. I come to this conclusion because the Act draws a distinction between “patentability” and patent “validity”. It clearly provides that the patentability of an invention is to be determined through the examination and re-examination process. It just as clearly provides that patent validity is to be determined by the court.