Date: 20000413
Docket: A-599-97
(T-2153-91)
CORAM: STONE J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
RON HOPKINSON, EDWARD R. RING AND THOMAS VIRANY
Appellants (Plaintiffs)
- and -
THE COMMISSIONER OF PATENTS, and
HER MAJESTY IN RIGHT OF CANADA
Respondents (Defendants)
Heard at Ottawa, Ontario, on Thursday, April 13, 2000.
Judgment rendered from the Bench on Thursday, April 13, 2000.
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20000413
Docket: A-599-97
(T-2153-91)
CORAM: STONE J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
RON HOPKINSON, EDWARD R. RING AND THOMAS VIRANY
Appellants (Plaintiffs)
- and -
THE COMMISSIONER OF PATENTS, and
HER MAJESTY IN RIGHT OF CANADA
Respondents (Defendants)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on Thursday, April 13, 2000)
STONE J.A.
[1] This is an appeal from a judgment of the Trial Division dated June 13, 1997, in an action commenced by a Statement of Claim in 1991 for relief by way of declaration, injunction and mandamus. At the heart of the dispute is whether in point of law patent examiners employed in the Patent Office are discharging a function that belongs to the Commissioner of Patents under subsection 27(1) of the Patent Act, R.S.C. 1985, c. P-4, as amended, and for which they require a delegation of authority from the Patent Commissioner pursuant to that statute.
[2] The issues at trial were determined on a record that consisted of an Statement of Agreed Facts and Issues as supplemented by the testimony of one of the appellants and portions of the evidence given on discovery by a representative of the respondents. No defence was filed by the respondents.
[3] On the central issue of whether a delegation of authority from the Patent Commissioner to the appellants was required, we are satisfied from our review of the record that what the appellants did in "allowing" patent applications did not require a delegation of authority from the Patent Commissioner. As the Trial Judge found on the evidence: "It is the Commissioner who grants a patent...not the patent examiner". That is also clear from our reading of subsection 27(1) of the Act.
[4] We desire to add a few words on two other aspects of the judgment. While the point is not directly raised, the parties are in agreement that patent examiners are appointed or employed by the Public Service Commission pursuant to the Public Service Employment Act, R.S.C. 1985, c. P-33. Paragraph 3 of the judgment declares, however, that the: "Treasury Board has authority to hire patent examiners to examine patent applications under the Patent Act". Having regard to the provisions of the above referred to statute, this paragraph will be amended by deleting "Treasury Board" and substituting "The Public Service Commission" therefor.
[5] Paragraph 4 of the judgment reads: "Patent examiners are members of the Public Service;". We accept the submission that this paragraph is correct but, for sake of clarity, it should read: "Patent examiners appointed pursuant to the Public Service Employment Act are members of the Public Service;".
[6] As regards the use in 1991 of temporary examiners in the Patent Office, we are not persuaded that we should interfere with the Trial Judge"s refusal to delve into that matter which was not the subject of one of the questions that were agreed upon by the parties prior to trial.
[7] Paragraphs 3 and 4 of the judgment below will be amended to the extent indicated above. In all other respects the appeal will be dismissed with costs, and the action dismissed.
"A.J. Stone"
J.A.