Date: 19990930
Docket: T-488-99
OTTAWA, ONTARIO, SEPTEMBER 30, 1999
BEFORE THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
TROJAN TECHNOLOGIES, INC.
Plaintiff
- and -
CALGON CARBON CANADA, INC. and
CALGON CARBON CORPORATION
Defendants
O R D E R
The motion for summary judgment is granted in limited terms. Claims 22 and 24-27 are valid and have been infringed. The balance of the action will be dealt with at trial. I agree with the parties that the matter should be heard expeditiously. Costs in the cause.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19990930
Docket: T-488-99
BETWEEN:
TROJAN TECHNOLOGIES, INC.
Plaintiff
- and -
CALGON CARBON CANADA, INC. and
CALGON CARBON CORPORATION
Defendants
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] In a motion for summary judgment dated March 17, 1999, the plaintiff, Trojan Technologies Inc. seeks namely:
| 1) A declaration that the defendant Calgon Carbon Canada, Inc. has infringed sections 1, 22 and 24-31 of Canadian Letters Patent No. 2,117,040. |
| 2) A declaration that this patent is valid and subsisting; |
| 3) An injunction restraining the defendants from selling the Aurora UVTM Disinfection System which is alleged to infringe Trojan Technologies Inc."s patented invention. |
| 4) An Order for: |
| a) Delivery of the Aurora system and any other thing which may offend the injunction sought. |
| b) Damages or an accounting for profits. |
| c) The plaintiff"s costs on this motion. |
[2] The plaintiff, Trojan Technologies Inc. ("Trojan") is the owner of a patent which embodies the invention described in Patent No. 2,117,040. This patent relates to a system for the treatment of wastewater using UV radiation in a gravity fed fluid treatment system.
[3] The defendants, Calgon Carbon Canada Inc. and Calgon Carbon Corporation, ("Calgon") manufacture and sell another wastewater treatment system called the Aurora UVTM Disinfection System. This system also uses ultra violet radiation to disinfect water. The plaintiff alleges that this Aurora system is similar to Trojan"s patented invention and infringes claims 1, 22, 24-27 and 28-31 of the patent.
[4] Applying the principles which I have summarized in Granville Shipping Co. v. Pegasus Lines Ltd.1 and after a careful review of the evidence put forth in this case, I am persuaded that summary judgment should be granted in limited terms.
[5] The evidence clearly establishes that claims 22 and 24-27 have been infringed. Professor Cormack, the defendant"s own expert admitted that all of the elements of claims 22, and 24-27 were found in the Aurora UVTM system.2
[6] Further, with respect to the obviousness of claim 22, none of the references cited by the defendant are applicable. As indicated by the applicant, none deal with modularity. Consequently, the defendant did not provide credible and substantial evidence that claim 22 is invalid.
[7] With respect to claims 1 and 28-31 there is, in my view, a genuine disagreement between the experts with respect to the construction and interpretation of the essential elements of the independent claims as well as inconsistent views on the question of whether there is an infringement.
[8] With regard to construction or interpretation, I agree with the defendants" position that there is no agreement amongst the experts with respect to the proper construction or interpretation of the phrases "fluid inlet zone", "substantially parallel", and "pre-determined maximum distance", "velocity". These phrases are essential to claims 1 and 28 and are relied on by the plaintiff. The expert evidence is contradictory and on that basis would best be left for trial.
[9] With respect to infringement, some of the conclusions of the plaintiff"s expert, Mr. Gillette, are based on information and belief. This raises a question of credibility and an issue regarding the reliability of his conclusions. Consequently, this issue should also be determined at trial.
[10] Concerning the issue of validity, the plaintiff did not file evidence in reply to Professor Cormack"s opinion, as a person skilled in the art, that claim 1 is obvious. As a result, his evidence remains uncontradicted and the issue should be dealt with at trial. Moreover a question remains regarding whether Professor Cormack applied the appropriate test for obviousness.
[11] For these reasons, the motion for summary judgment is granted in limited terms. Claims 22 and 24-27 are valid and have been infringed. The balance of the action will be dealt with at trial. I agree with the parties that the matter should be heard expeditiously. Costs in the cause.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
September 30, 1999.
__________________1 [1996] 2 F.C. 853 (F.C.T.D.).
2 Professor Cormack"s cross-examination at p. 17-Q.65, at p. 20-Q71.