Federal Court of Appeal Decisions

[354] In the end result, I conclude that the claim and counterclaim both fail. The allegations of infringement have not been established for two reasons, the absence of a frame mounted fertilizer knife and the substitution of a common mounting member for all three key elements constructed so that all three elements moved about a common pivot, and a seed tube which does not engage the soil solely by its outer surface. I have found that there are other substitutions and variations but I conclude that none of them are sufficient to constitute infringement.

[355] The challenges to the validity of the patent also fail though for a greater variety of reasons.

[356] The claim against the individual Seed Hawk defendants [Pat Beaujot, Norbert Beaujot and Brian Kent] fails as infringement has not been found. Had I concluded that there was infringement, I would not have found against the individual defendants as I have concluded that none of their conduct was tortious in itself. Furthermore, there was no conduct to suggest that the corporate vehicle [Seed Hawk Inc.] was an instrument of fraud, or simply a device to cloak the personal activities of the individual defendants.

[357] The claim against Simplot also fails because I have found no infringement. However, had I done so, I conclude that there is nothing to show that the Seed Hawk defendants would not have infringed but for the activities of Simplot.

[358] The defendants are entitled to an order dismissing the claim while the plaintiffs are entitled to a declaration of validity of the asserted claims.

[266] In their Written Submissions, under the heading "Inutility of Claims 1, 2, 3, 6, 10, 12, 19, and 20", the Seed Hawk defendants argue that an element which is critical to the functionality of the invention has not been claimed because of the failure of these claims to recite the necessity of a spacing of 6 to 12 inches between the second tube means from the first knife means. The Seed Hawk defendants conclude that "Accordingly, the claims of the Halford patent fail to recite a device that will be operable, and thus the claims are invalid as failing to recite an operable device". (The Seed Hawk defendants' Written Submissions, at para. 519). No authority is cited in support of this position.

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[271] That said, the Seed Hawk defendants did not plead this deficiency in the claims and did not request an amendment to make the pleadings conform to the evidence. The plaintiffs have not responded to these allegations. As a result, I am not in a position to decide on the validity of the various claims on this basis.

[272] In their Written Submissions, the Seed Hawk defendants also argue this same defect from the point of view of overclaiming. They allege that by failing to include this limitation in the claims, the patent claims more than has been disclosed. This allegation is subject to the same criticism as the allegation of lack of utility. It was not pleaded. In the circumstances, I cannot give effect to this allegation.

[1] After judgment was issued dismissing the plaintiffs' claim of infringement and the defendants' counterclaim for a declaration of invalidity, the defendants moved for reconsideration on the ground that a matter which should have been dealt with was overlooked. Specifically, the defendants argued that I erred in dismissing the counterclaim for invalidity in that I did not deal with a ground of invalidity raised in the course of the trial (the zero till issue), and further, that I erred in finding that another ground of invalidity was not pleaded (the critical spacing issue). Coupled with these grounds was a request that I allow an amendment to the pleadings to make them conform to the evidence, and that, on the basis of that amendment, I dispose of the counterclaim in light of the amended pleadings.

[13] In my view, the doctrine of functus officio precludes me from reopening my judgment to deal with alleged errors or omissions in my reasons which are reflected in the judgment signed in this matter. The argument that the pleadings do in fact cover the allegation that the patent is invalid for failing to specify a critical dimension is simply an attempt to have me correct what the defendants perceive to be an error in my reasons. The argument with respect to the zero till issue does deal with an omission, but that does not give rise to a right to have the judgment reopened on that question. If there has been an error made, the Court of Appeal will correct it.

[14] The same logic applies to the request for an order amending the pleadings to conform to the evidence and for a ruling on the issue raised by the amended pleadings. This is clearly outside the scope of Rule 397. The defendants seek to justify their demand by reference to the words of Rule 75:

75. (1) Subject to subsection (2) and rule 76, the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties.

75. (1) Sous réserve du paragraphe (2) et de la règle 76, la Cour peut à tout moment, sur requête, autoriser une partie à modifier un document, aux conditions qui permettent de protéger les droits de toutes les parties.

(2) No amendment shall be allowed under subsection (1) during or after a hearing unless

(2) L'autorisation visée au paragraphe (1) ne peut être accordée pendant ou après une audience que si, selon le cas :

(a) the purpose is to make the document accord with the issues at the hearing;

a) l'objet de la modification est de faire concorder le document avec les questions en litige à l'audience;

(b) a new hearing is ordered; or

b) une nouvelle audience est ordonnée;

(c) the other parties are given an opportunity for any preparation necessary to meet any new or amended allegations.

c) les autres parties se voient accorder l'occasion de prendre les mesures préparatoires nécessaires pour donner suite aux prétentions nouvelles ou révisées.

[15] The defendants rely upon the words "at any time" where they appear in Rule 75(1). They say that the rule imposes no limitation on "at any time" and, as a result, it is open to a party to apply for an amendment to the pleadings even after judgment has been rendered. The defendants' interpretation would allow a party to circumvent the doctrine of functus officio simply by moving to amend the pleadings after judgment. The defendants cited cases in which amendments had been allowed at the conclusion of argument, or after the jury's verdict, but they were unable to produce any authority in which an amendment had been allowed after judgment.

[16] In my view, a trial judge has a broad discretion to allow amendments to the pleadings at any time prior to judgment, but that right is extinguished after judgment has been signed. At that point, there has been a final adjudication of the parties' rights which can only be attacked upon appeal. I would therefore dismiss the application for reconsideration.

9. The learned Trial Judge erred by failing to declare claims 1,2,3,6,7,10,12, 19 and 20 of the Patent invalid for lacking the following essential features as so found by the Trial Judge on the evidence, namely

(i)         second material delivery means spaced rearwardly of the first material delivery means a specified distances, namely a distance of 6 - 12 inches; and

(i)         the alleged invention is restricted to zero-till or minimum till;

notwithstanding the pleading of invalidity by the Respondent Seed Hawk in subparagraphs 13(k) and (l) of the Amended Statement of Defence, namely:

(k) the patent specification fails to comply with Section 34(2) of the Patent Act then [sic] in force at the relevant date in that the claims do not state distinctly and in explicit terms the things or combinations that were regarded as new and in which there is claimed an exclusive property or privilege;

(l) each of the claims in the patent is broader than the alleged invention, if any, made and described by the named inventor.

10. If it is determined that the Amended Statement of Defence of Seed Hawk of June, 2001 did not expressly or implicitly include the aforesaid particulars of the grounds of invalidity, it is submitted that the Learned Trial Judge erred in refusing leave to permit the Respondent Seed Hawk at trial, to amend subparagraphs 13(k) and (l) of its Amended Statement of Defence during the final argument before the Learned Trial Judge, and again on motion by Seed Hawk following the delivery of the Order and Reasons for Order dated January 23, 2004, to plead particulars of invalidity of the aforesaid claims of the Patent by virtue of the absence from the said claims of the essential features as recited in paragraph 9 hereof.

11. It is submitted that the learned Trial Judge erred in refusing, during the trial, to entertain the Respondent Seed Hawk's application for a Summary Judgment motion for dismissal of the action against Seed Hawk and the other Defendants on the basis of the admissions of the Plaintiffs' counsel and their witnesses during the trial, and as so found by the Trial Judge, that (a) the alleged invention was restricted to zero or minimum till applications, and (b) that the spacing between the first material delivery means and the second material delivery means be 6 - 12 inches, are essential elements of the alleged invention and are absent from claims 1,2,3,6,7,10,12, 19 and 20 of the Patent, thereby rendering the said claims invalid and void on the grounds set forth in subparagraph 13(k) and (l) of the Respondent Seed Hawk's Amended Statement of Defence aforesaid.

13. In further answer to the whole of the Amended Statement of Claim, these defendants say that the Patent and each of claims 1,2,3,6,7,10,12,19 and 20 are invalid and void by reason of the following:

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k] the patent specification fails to comply with Section 34(2) of the Patent Act then [sic] in force at the relevant date in that the claims do not state distinctly and in explicit terms the things or combinations that were regarded as new and in which there is claimed an exclusive property or privilege, namely:

i)          the aforesaid claims each fail to recite an essential feature of the alleged invention critical to its proper operation, namely that the second material delivery means be spaced rearwardly of the first material delivery means a distance of 6 - 12 inches; and

ii)         each of the aforesaid claims of the patent fail to recite an essential feature of the alleged invention, namely: that the invention is restricted to zero till.

(l) Each of the claims in the patent is broader than the alleged invention, if any, made and described by the named inventor, and in particular,

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iv)        the aforesaid claims each fail to recite an essential feature of the alleged invention critical to its proper operation, namely that the second material delivery means be spaced rearwardly of the first material delivery means a distance of 6 - 12 inches; and

v)         the aforesaid claims each fail to recite an essential feature of the alleged invention, namely: that the invention is restricted to zero till, and further fail to recite elements of structure which the disclosure of the patent states permit the alleged invention to operate in zero till conditions.

52. The Federal Court of Appeal may

52. La Cour d'appel fédérale peut_:

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(b) in the case of an appeal from the Federal Court,

b) dans le cas d'un appel d'une décision de la Cour fédérale_:

(i) dismiss the appeal or give the judgment and award the process or other proceedings that the Federal Court should have given or awarded [...].

(i) soit rejeter l'appel ou rendre le jugement que la Cour fédérale aurait dû rendre et prendre toutes mesures d'exécution ou autres que celle-ci aurait dû prendre [...].

Mr. Donald H. MacOdrum

Mr. Keith Bird

FOR THE APPELLANTS

Mr. Alexander Macklin, Q.C.

Mr. D. Doake Horne

FOR THE RESPONDENTS, SEED

   HAWK

Lang Michener LLP

Toronto, Ontario

FOR THE APPELLANTS                           

Gowling Lafleur Henderson LLP

Calgary, Alberta

FOR THE RESPONDENTS, SEED

HAWK