Glaston Services Ltd. Oy v. Horizon Glass & Mirror Ltd.

Glaston Services Ltd. Oy v. Horizon Glass & Mirror Ltd.
Court (s) Database
Federal Court Decisions
Date
2010-11-26
Neutral citation
2010 FC 1191
File numbers
T-1108-07
Decision Content
Federal Court
Cour fédérale
Date: 20101126
Docket: T-1108-07
Citation: 2010 FC 1191
Ottawa, Ontario, November 26, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
GLASTON SERVICES LTD. OY
Plaintiff
and
HORIZON GLASS & MIRRORS LTD. AND SHANGHAI NORTHGLASS TECHNOLOGY & INDUSTRY CO., LTD.
Defendants
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] The Plaintiff, Glaston Services Ltd. Oy, (Glaston) brings this lawsuit against the Defendants, Horizon Glass & Mirror Ltd. (Horizon Glass) and Shanghai Northglass Technology & Industry Co., Ltd. (Shanghai Northglass) for infringement of two of its glass treatment patents, Canadian patent numbers 1,308,257 (the ‘257 Patent) and 2,146,628 (the ‘628 Patent).
[2] Glaston is a Finnish company which is the owner of the ‘257 and ‘628 Patents describing a method and apparatus for bending and tempering glass sheets.
[3] Horizon Glass is an Ontario company which carried on business as a custom fabricator of glass and mirror products. Shanghai Northglass is a Chinese company which is a supplier of glass processing machinery.
[4] Glaston claims Shanghai Northglass has infringed and induced Horizon Glass to infringe Gaston’s ‘257 Patent and ‘628 Patent by selling, installing and commissioning an infringing glass bending and tempering production line at Horizon Glass’s premises in Toronto.
[5] Horizon Glass made an assignment in bankruptcy and has not defended in this action. Shanghai Northglass was not to be represented by legal counsel and applied to the Court to be represented in this action by a business representative which was denied. Neither filed a statement of defence with the Court.
[6] Glaston seeks judgment in this trial of an undefended action.
Background
The Parties
[7] The Plaintiff Glaston is a company organized under the laws of Finland having its principal place of business at Vehmaistenkatu 5, 33730, Tampere, Finland. It is a supplier of machinery used in the production of architectural, appliance and automotive glass.
[8] Glaston is the owner of the ‘257 Patent and the ‘628 Patent. The corporate ownership history of the two patents is as follows:
§ On September 1, 1987, the named inventors of the ‘257 Patent, Pauli Tapani Reunamaki and Jouko Kalevi Jarvinen, assigned their rights in the invention of the ‘257 Patent to O/Y Kyro A/B Tamglass;
§ On September 2, 1987, O/Y Kyro A/B Tamglass filed for the ‘257 Patent;
§ On November 9, 1988, O/Y Kyro A/B Tamglass changed its name to O/Y Kyro A/B;
§ On December 28, 1988 O/Y Kyro A/B transferred its assets to Tamglass Oy, including its rights and title to the application for the ‘257 Patent;
§ On May 19, 1989, O/Y Kyro A/B executed a confirmatory assignment to Tamglass Oy of its rights and title to the application for the ‘257 Patent;
§ On October 16, 1992, Tamglass Oy assigned its rights and title to the application for the ‘257 Patent to Tamglass Engineering Oy;
§ On March 27, 1995, the named inventor of the ‘628 Patent, Esko Lehto, assigned his rights in the invention of the ‘628 Patent to Tamglass Engineering Oy;
§ On April 7, 1995, Tamglass Engineering Oy filed for the ‘628 Patent;
§ On March 5, 1998, Tamglass Engineering Oy changed its name to Tamglass Ltd Oy;
§ On March 12, 1998, Tamglass Ltd Oy changed its name to Tamglass Ltd. Oy;
§ On July 2, 2007, Tamglass Ltd. Oy changed its name to Glaston Services Ltd. Oy.
[9] The Defendant Shanghai Northglass has its place of business at No. 14, A-district, Songjiang Science & Technology Zone, Shanghai, China. Shanghai Northglass is a joint venture involving the North Glass group, of which Luoyang North Glass Technology Co. Ltd. is a member. Shanghai Northglass is a supplier of glass processing machinery and is also known as Shanghai North Glass Technology Industrial Co., Ltd.
[10] The Defendant Horizon Glass is an Ontario corporation with a registered office at 91 Crockford Blvd., Unit 9, Toronto, Ontario M1R 3B7. Horizon Glass has a business name registration for and carries on business under the name Adel Glass & Mirror Products. Horizon Glass is a custom fabricator of glass and mirror products for the glass jobber, architectural, appliance and automotive and other specialty markets.
The Proceedings
[11] On June 14, 2007 the Plaintiff Tamglass Ltd. Oy, now Glaston, filed a Statement of Claim in Federal Court claiming the Defendant Shanghai Northglass infringed its Canadian patent, Patent ‘257, and induced Horizon Glass to also infringe the Glaston patent by selling, installing and commissioning an infringing glass bending and tempering production line at Horizon Glass’s premises in Toronto, Ontario.
[12] On June 15, 2007, the Statement of Claim was served on Horizon Glass. On August 7, 2007, Horizon Glass filed an assignment in bankruptcy. It never filed a statement of defence.
[13] On October 16, 2007, pursuant to the Hague Convention, the Chinese Central Authority served Shanghai Northglass with a Mandarin translation of the Statement of Claim. In addition, Prothonotary Aalto ordered on May 28, 2008 that the Order, the Amended Statement of Claim in this action dated June 23, 2008, together with accurate Mandarin translations of those documents be served on Shanghai Northglass, which was done on June 26, 2008. The Amended Statement of Claim adds a claim for infringement of the ‘628 Patent. The Amended Statement of Claim was not served on Horizon Glass.
[14] On December 10, 2008, the Court dismissed a motion by Shanghai Northglass to be represented by “the manager of Shanghai North Glass Technology & Industry Co., Ltd.” The Court had previously refused to accept for filing another such motion. Shanghai Northglass had sent four purported statements of defence and counterclaim to Glaston’s solicitors. None has been accepted by the Court for filing. Shanghai Northglass has not appointed a Canadian solicitor, nor has it filed a statement of defence in Federal Court.
[15] In September of 2009 Glaston brought a motion for default judgment as against Shanghai Northglass and filed three Affidavits in support of the motion. The first was from Ms. Jaclyn Edgerton, attaching correspondence and orders relating to the service of the claim, the amended Statement of Claim, and default by Shanghai Northglass. The second Affidavit was from Mr. Brian Rockefeller, an investigator who took both video and photographs of the allegedly infringing equipment, and also obtained some documents relating to the equipment from the receiver in bankruptcy of Horizon Glass. The third Affidavit was from Mr. Harri Perämaa, an expert who explained the technology and the patents, and gave an opinion that the Shanghai Northglass equipment and its operation are covered by claims in each of the two Glaston patents. On the return of the default judgment motion, Justice Kelen granted an interlocutory injunction and ordered a one day trial with leave to read in these Affidavits as evidence at the trial as long as Mr. Rockefeller and Mr. Perämaa were available to answer questions.
Prior Art
[16] The automotive industry served as the impetus for the developments in glass treatment that led to the patents that are the subject of this action.
[17] Tempered Glass: Prior to the 1960’s, most cars had flat tempered side windows. Tempering is a process where glass is heated to approximately 650 degrees centigrade, then rapidly cooled with blowing air. This causes the center of the glass to cool more gradually than the surface. As the center cools, it contracts, which compresses the outer surfaces of the glass and creates a stress pattern along the mid-plane of the glass. The tempering process results in glass many times stronger than annealed glass (where the glass is cooled more slowly) of the same thickness. Upon impact, tempered glass is designed to disintegrate into small pieces of glass. The properties of tempered glass make it extremely valuable for automotive purposes. The production of high optical quality bent tempered glass has always been a challenge.
[18] Vertical Moulding: In the 1970’s, automotive manufacturers started designing more aerodynamic cars and required curved side windows and thinner glass with better optical properties. In the 1960’s and 1970’s, glass treatment machines carried glass sheets held in a vertical plane by tongs and conveyed by a laundry rope-type conveyor. After heating, the glass sheets were placed between a pair of complementary moulds that shaped the glass when pressure was applied. After shaping the glass, the moulds moved back and the glass was cooled from air blown onto the shaped sheet. These vertical glass bending machines would only produce 50-100 sheets of glass in an eight-hour period.
[19] Horizontal Moulding: Glass bending in the horizontal plane was achieved using ceramic rollers instead of tongs to transport the glass sheet. The heated glass was pressed between the top and bottom mould. Once the glass was shaped or bent, the bottom mould moved down and the glass rested again on ceramic rollers. The disadvantages of this approach included the expensive cost of ceramic rollers, the requirement of new moulds for each different curvature of glass, and the significant set up time and testing required for each production run.
[20] Horizontal Pressure-Moulding Rolls: Horizontal bending and tempering was also achieved by passing the heated glass sheet through top and bottom pressure-forming rolls. The pressure-forming rolls, arcuate rods, were manufactured in the bent or curved shape required. The glass was bent around an axis parallel to the direction of travel as it traveled between the top and bottom pressing-forming rolls. The pressure-forming rolls had to be individually adjusted or even replaced for each type of glass and desired curvature. Arcuate rolls are expensive to make and also involve extensive set up and testing for production runs.
[21] Gravity Bending Furnaces: Finally, in gravity bending furnaces, glass bending was achieved by using supporting ring moulds utilizing gravity without a press. The furnace contained a mould and heaters on top. Glass was bent by adjusting the heating: the greater the heat provided to an area, the more the glass bent in that area. The glass would be placed on the bending ring mould inside a wagon which traveled though the pre-heating, bending and cooling stages. The glass was not tempered after bending. These furnaces were used mainly for automotive laminated windshield production with the bent sheets of glass laminated together to achieve desired automotive strength and safety requirements. However, windshield gravity bending furnaces are not suitable for producing tempered car side windows.
The Glaston Patents
[22] The Glaston ‘257 Patent is a method and apparatus for bending and tempering glass sheets. The ‘257 Patent, together with the ‘628 Patent refinement, was a novel method of bending and tempering glass sheets. A sheet of glass to be bent and tempered is moved by a conveyor from the heating furnace on to a bending and tempering section while flat and horizontal. Once the heated glass sheet has passed into the bending and tempering section, the section arches, bending the heated glass around a horizontal axis transverse to the direction of travel. Hot air is blown onto the bending glass, maintaining the temperature and augmenting the bending force of gravity. Once the desired curvature has been reached, tempering is commenced by cool air blown onto the glass. Throughout the bending and tempering process, the glass is oscillated on the rollers of the bending and tempering section. Once the process is completed, the top of the section is lifted and the bottom of the section returned to the horizontal so that the bent and tempered glass can be conveyed away.
[23] Prior to the ‘257 Patent, no glass treatment machine had used oscillating rollers in a bending and tempering section. Oscillation had been used in flat tempering machines only. Glass bending and tempering machines before the ‘257 Patent used either a pair of complementary press moulds without rolls or used pressure-forming rolls in a continuous apparatus where the glass continues to travel in the forward direction forming the curve. Because of the shape and placement of the pressing-forming rolls, the bending began at the leading edge of the bending section and curvature progressively increased around the axis of travel as the glass sheet moved forward. Consequently, oscillation was not possible.
[24] The ‘257 Patent primarily achieved glass bending by gravity. The ‘628 Patent improved on this process by providing mechanical pressure bending in addition, thereby shortening the time for bending and allowing the treatment to occur with lower and more constant temperatures. This would result in improved optical quality of the glass.
[25] The glass bending and tempering approach in the ‘257 and ’628 Patents overcome limitations that exist with other prior processes. The method and apparatus does not require different moulds or setting of rollers for each shape of glass. It allows a glass manufacturer to switch production from one specification of glass to another by comparatively straightforward adjustments. While the Glaston apparatus is attractive to small manufacturers, it is also utilized by big manufacturers because of the ease of use of the machine and the quality of the glass made by it.
Events
[26] The application in Canada for the ‘257 Patent was filed on September 2, 1987 before October 1, 1989, and issued on October 6, 1992. The ‘628 Patent was filed on April 7, 1995, after the October 1, 1989 date differentiating the term of a patent as set out in sections 44 and 45 of the Patent Act, R.S.C. 1985 c. P-4 (Patent Act).
[27] By uncontested evidence introduced by Notice to Admit Facts, Glaston has established salient facts set out in the following paragraphs.
[28] Horizon Glass agreed to purchase and Shanghai Northglass agreed to manufacture and sell glass-processing equipment referred to as a “Horizontal Roller Hearth Reversible-Direction Flat/Bent Glass Tempering Furnace Model No. SNG-12B3617 (4-19mm)” (the North Glass Machinery) pursuant to a written agreement of purchase and sale dated October 6, 2005 between Horizon Glass and Shanghai Northglass (the Contract). The contract price for the North Glass Machinery was US $405,000.
[29] Shanghai Northglass manufactured the North Glass Machinery in China. After the machinery had arrived at the Horizon Glass premises in Toronto, Shanghai Northglass set up the North Glass Machinery at the Horizon Glass premises and conducted acceptance tests in Toronto to ensure the machinery was operating properly. Shanghai Northglass also provided training to Horizon Glass personnel on how to operate the North Glass Machinery.
[30] Shanghai Northglass technicians installed and commissioned the North Glass Machinery at the Horizon Glass premises, including performing acceptance tests, and also trained Horizon Glass employees on the operation of the equipment.
[31] The structure and function of the North Glass Machinery is described in the following documents:
(a) Part Two of the October 6, 2005 contract entitled “Technical Contract”;
(b) The “Glass Tempering System Technical Manual CA51047-12B3617”
[32] Shanghai Northglass continues to offer for sale equipment similar to the North Glass Machinery.
Issues
[33] Rule 210(4) of the Federal Courts Rules, SOR/98-106 provides that on a motion for default, the Court may order “that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.”
[34] Upon Glaston’s motion for default judgment, Justice Kelen issued an order that the action would proceed to trial under Federal Court Rule 210(4) and that the issues for trial are:
§ Default by Shanghai Northglass and Horizon Glass;
§ Validity of the ‘257 Patent and the ‘628 Patent;
§ Construction of claims 1 to 3, 7, 12, 14 and 15 of the ‘257 Patent and claims 1 to 3, 5, and 6 of the ‘628 Patent;
§ Infringement by Shanghai Northglass of claims of the ‘257 Patent and claims of the ‘628 Patent;
§ Inducement of defendant, Horizon Glass, to infringe claims of the ‘257 Patent and claims of the ‘628 Patent; and
§ Costs.
[35] Justice Kelen further ordered that the issue of damages was to be determined by way of reference to a Prothonotary on a finding of liability at trial.
Analysis
Default
[36] The approach to be taken on a motion for default judgment and the applicable test was summarized by Snider J. in Louis Vuitton Malletier S.A. v. Lin, 2007 FC 1179 at para 4 as follows:
On a motion for default judgment, where no Statement of Defence has been filed, every allegation in the Statement of Claim must be treated as denied. A plaintiff must first establish that the defendant was served with the Statement of Claim and has not filed a defence within the deadline specified in Rule 204 of the Federal Courts Rules, SOR/98-106. Evidence must be led that enables the Court to find, on a balance of probabilities, that infringement has occurred within the meaning of the relevant statute...
[37] Glaston has established on the facts set out above, which are not disputed, that both Defendants, Shanghai Northglass and Horizon Glass, have been served with the Statement of Claim, and Shanghai Northglass has been served with the Amended Statement of Claim. Shanghai Northglass has not filed a Statement of Defence with the Federal Court. Neither has Horizon Northglass.
Expert Witness
[38] I am assisted in describing the ‘257 and ‘628 Patents by the expert evidence of Mr. Harri Ensio Perämaa as set out in his Affidavit and his testimony. During trial I accepted Mr. Perämaa generally as an expert in mechanical engineering and more specifically on glass bending and tempering technology.
[39] The Supreme Court found in R. v. Mohan, [1994] 2 S.C.R. 9, 29 C.R. (4th) 243 admission of expert evidence depends on the relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule and the proper qualifications of the expert.
[40] Mr. Perämaa has extensive experience in the relevant area of expertise. From 1984 until 1989 Mr. Perämaa worked in the research and development department at Tamglass Engineering Oy as a research and development engineer in the field of bending and tempering glass. He was involved in the development of a horizontal tempering furnace, a horizontal tempering system machine and later a horizontal tempering and bending system. His work in relation to the horizontal bending and tempering system was to develop and design mechanical parts of the bending section.
[41] Mr. Perämaa also worked on designing and developing a heat strengthening tempering machine and he is an inventor on patents relating to this machine.
[42] From 1989 to 1992 Mr. Perämaa worked as a factory set up consultant, installation supervisor and project manager for Tamglass Engineering Oy's overseas projects. The focus of his work was on installing and setting up tempering and bending machines. In 1992 he left Tamglass and joined National Glass and Mirrors in Saudi Arabia, working as a factory manager until 1994. Since then Mr. Perämaa has been involved in different glass enterprises in the Arabian Peninsula and North Africa as a consultant, project manager, and investor.
[43] As I understand it, Mr. Perämaa was intimately involved as an engineer in the design of the glass bending and tempering machine in this case. He has continued to apply his expertise as an engineer in the field of glass manufacturing to the present day. I consider his expertise relevant and of assistance to help me understand the purpose, construction and history of the ‘257 and ‘628 Patents and to construe the claims at issue here.
The Patents
[44] Turning to the relevant specifics of the Glaston patents, they are as presented in the evidence deposed and testified to by Mr. Perämaa as follows:
1. The '257 Patent: the ‘257 Patent is entitled “Method of and Apparatus for Bending and Tempering Glass Sheets”. The application for the ‘257 Patent was filed in Canada on September 2, 1987. The ‘257 Patent issued and was published on October 6, 1992.
2. The ‘257 Patent provides a novel method and apparatus for making bent, tempered glass of high optical quality. The ‘257 Patent provides a brief description of the design and operation of a complete bending and tempering line, of which the bending and tempering section itself is part (3):
The apparatus comprises a loading section 1, a heating furnace 2, a bending and tempering section 3, a postchilling or annealing section 4 and an unloading section 5. Each section and the heating furnace are provided with conveyors consisting of horizontal rollers extending crosswise to the traveling direction, namely a loading section conveyor 6, a furnace conveyor 7, an intermediate conveyor 8 at the downstream end of the furnace, a bending and tempering section conveyor 9, an annealing section conveyor 10 and an unloading section conveyor 11.
3. In the method, a sheet of glass to be bent and tempered is moved from left to right through the line. In the heating furnace, the sheet of glass travels on the furnace conveyor in an oscillating fashion such that the forward oscillating stroke is longer than the return stoke and the sheet advances. When the sheet enters the bending and tempering section of the line, the bending and tempering section (and the glass sheet) is flat and in a horizontal state, as shown below in Figure 3.
4. The section then arches (see Figure 4 below). Once the desired curvature has been reached, tempering is commenced by blowing cool air onto the glass. During the bending and tempering process, the glass is oscillated from left-to-right on the rollers of the bending and tempering section around an axis of curvature transverse to the traveling direction (in Figure 4, the axis comes straight out of the page).
5. Following the completion of the bending and tempering process, the top portion of the bending and tempering section is lifted and the bottom portion is returned to horizontal so that the bent and tempered glass sheet can be conveyed away (to the right as shown by the arrow in Figure 5 below):
6. The '628 Patent: the ‘628 Patent is entitled “Bending and Tempering Station for Glass Sheets”. The application for the ‘628 Patent was filed in Canada on April 7, 1995, and open to public inspection on October 27, 1995. The ‘628 Patent issued on December 20, 2005. The ‘628 Patent concerns an improvement over the ‘257 Patent.
7. As discussed in the disclosure of the ‘628 Patent, the ‘257 Patent relates to an apparatus for bending and tempering a glass sheet based on gravitational bending of the glass. Although the ‘257 Patent reduces the need for overheating, it is sometimes necessary to heat the glass above the required tempering temperature to compensate for heat loses while the glass bends. This increase in temperature can create optical errors in the final product.
8. The ‘628 Patent further reduces the need for overheating by replacing gravitational bending with mechanical press bending with upper “press” rollers that act on the glass while it is being bent. By using press rollers a sheet of glass can be bent more quickly and thus heat loss prior to tempering is minimized and the glass can be heated to a lower initial temperature, resulting in greater optical quality. For example, this is advantageous for bending thin glass on which gravity has a lesser effect bending effect as compared to heavier, thicker glass. It is also advantageous for bending shaped glass, like that used in sports car windows, on which gravity has uneven bending effects.
9. Operation of the apparatus is described in reference to Figures 2A, 2B, and 3 below as follows:
As shown in FIG. 2A, upon the arrival of a glass sheet in the bending and tempering station, the press wheels 11 are in their top position slightly off the glass surface or they can also be in a light contact therewith. When the glass is completely inside the bending station (FIG. 2B), the bending commences. The press wheels 11 are simultaneously provided with a desired and adjustable down-force forcing the glass to conform to the rollers 4 of the flexing conveyor. However, the glass reciprocates in an oscillating fashion during the course of bending. In the illustrated case, the press rollers 11 and conveyor rollers 4 are on top of each other and, in the bottom position of rollers 11, the distance there between is slightly less than the thickness of a glass sheet to be bent. When the leading edge of a glass sheet arrives between roll 4 and rollers 11, the rollers shift a small distance upwards against the force of the pneumatic spring 17.
FIG. 3 illustrates a situation in which the glass has reached a certain degree of bending. Upon reaching the final degree of bending, the tempering blast is commenced while the glass continues oscillation between rollers 4 and rollers 11. As the tempering operation is finished, the upper press rollers 11 are lifted and returned to their top position. Thus, the bottom position of rollers 11 is a working position and the top position is a rest position.
Construction of Patents
[45] In Bristol-Myers Squibb Canada Co. v. Apotex, 2009 FC 137, [2009] 243 F.T.R. 161, Justice Hughes succinctly summarized applicable jurisprudence concerning claim construction:
37 The Supreme Court of Canada has instructed that the Court must first construe the claims at issue before moving to consideration of issues such as validity and infringement of those claims, the purpose in doing so is to identify what it is in the claims that the inventor considered to be essential. This construction is to be conducted in a purposive manner so as to endeavour to be fair to both the patentee and the public per Binnie J. for the Court in Whirlpool Inc. v. Camco Inc., [2000] 2 S.C.R. 1067 at paragraphs 42 to 50. I repeat part of paragraphs 43 and 45:
43 The first step in a patent suit is therefore to construe the claims. Claims construction is antecedent to consideration of both validity and infringement issues. The appellants' argument is that these two inquiries -- validity and infringement -- are distinct, and that if the principles of "purposive construction" derived from Catnic are to be adopted at all, they should properly be confined to infringement issues only. The principle of "purposive construction", they say, has no role to play in the determination of validity, and its misapplication is fatal to the judgment under appeal.
…
45 The key to purposive construction is therefore the identification by the court, with the assistance of the skilled reader, of the particular words or phrases in the claims that describe what the inventor considered to be the "essential" elements of his invention.
38 The '288 patent is governed by the provisions of the old Patent Act, thus is to be construed by the Court as of the date of its grant, March 31, 1992, through the eyes of a person skilled in the art, assisted if needed by expert evidence as to the meaning of certain terms and the knowledge that a person skilled in the art would have had as of trial date. As Sharlow JA. for the Federal Court of Appeal wrote at paragraph 4 of Novopharm Limited v. Janssen-Ortho Inc., (2007), 59 C.P.R. (4th) 116, 2007 FCA 217 respecting an old Patent Act patent:
4 In any case in which the validity or infringement of a patent claim is in issue, it is necessary to construe the claim: Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067 at paragraph 43. The relevant date for the construction of the 080 patent is the date of its issuance, June 23, 1992. The patent must be understood as being addressed to a person skilled in the art, taking into consideration the knowledge that such a person is expected to possess on that date. The construction of a patent claim is a task for the Court and must be based on the whole of the disclosure and the claim, assisted by expert evidence as to the meaning of certain terms and the knowledge that a person skilled in the art is expected to possess on the relevant date.
[46] Justice Laydon-Stevenson, now of the Federal Court of Appeal, had earlier elaborated on the reasoning behind purposive construction in Canamould Extrusions Ltd. v. Driangle Inc., 2003 FCT 244, aff’d 2004 FCA 63 (Canamould), at paras. 31-33:
31 Patent construction is antecedent to issues of validity and infringement. The patent is to be construed as of the date of its publication. The Patent Act, R.S.C. 1985, c. P-4 (the Act) and purposive construction promote adherence to the claims and this in turn promotes fairness and predictability. The claims perform a public notice function by setting out the scope of the monopoly so that the public may know where it may go with impunity. The claim language must be read in an informed and purposive way. Claim interpretation is neither literal nor based on vague notions such as the "spirit of the invention". The more scope for searching for the "spirit of the invention" and the "pith and substance" of the invention, the less the claims can perform their public function. A patent falls within the definition of "regulation" in the Interpretation Act, R.S.C. 1985, c. I-21 and as such merits a construction that best assures attainment of its objects. The inventor's intention is manifested in the patent claims as interpreted by a person skilled in the art. The average person skilled in the particular art of the patent is not a grammarian or etymologist and does not indulge in a meticulous and verbal analysis.
32 The content of a patent specification is regulated by section 27 of the Act. The disclosure is the quid provided by the inventor in exchange for the quo of the monopoly. An inventor is not obliged to claim a monopoly on everything new, ingenious and useful disclosed in the specification. The usual rule is that what is not claimed is considered disclaimed. Regard may be had to the specification to understand what is meant by a word in a claim, but not to enlarge or contract the scope of the claim as written and thus understood. The claims and the disclosure are construed with a mind willing to understand. The words chosen by the inventor will be read in the sense that the inventor intended and in a way that is sympathetic to the accomplishment of the inventor's purpose, expressed or implicit, in the text of the claims. If the inventor, however, has misspoken or otherwise created an unnecessary or troublesome limitation in the claims, it is a self-inflicted wound. The public is entitled to rely on the words used provided the words used are interpreted fairly and knowledgeably.
33 As part of the informed and purposive construction of a claim, elements in the claim will be found to be essential or non-essential. There is no infringement if an essential element is different or omitted. There may still be infringement, however, if non-essential elements are substituted or omitted. An element in a claim will be considered non-essential and substitutable if either: (i) on a purposive construction of the words of the claim it was clearly not intended to be essential, or (ii) that at the date of publication of the patent, the skilled addressee would have appreciated that a particular element could be substituted without affecting the working of the invention i.e., had the skilled worker at that time been told of both the element specified in the claim and the variant and "asked whether the variant would obviously work in the same way", the answer would be yes.
[47] The ‘257 Patent has 15 claims and Glaston is asserting 7 of them: method claims 1 to 3, and 15, and apparatus claims 7, 12 and 14. These are the claims identified as at issue in Justice Kelen’s Order. These claims as set out in the ‘257 Patent are:
Method Claims:
1. A method of bending a glass sheet to be tempered, comprising the steps of
- carrying the glass sheet on horizontal rollers
- heating the glass sheet for bending and tempering
- curving the heated glass sheet around an axis of curvature transverse to the traveling direction
- effecting the tempering of the curved glass sheet while keeping the glass sheet in a reciprocating or oscillating motion by means of rollers carrying the glass sheet.
Characterized in the said curving direction around an axis of curvature transverse to traveling direction is effected in a manner that it takes place simultaneously and at substantially the same rate over the entire glass sheet area while moving said glass sheet by means of rollers carrying it.
2. A method of bending a glass sheet to be tempered, comprising the steps of
- carrying the glass sheet on horizontal rollers
- heating the glass sheet for bending and tempering
- curving the heated glass sheet around an axis of curvature transverse to the traveling direction
- effecting the tempering of the curved glass sheet while keeping the glass sheet in a reciprocating or oscillating motion by means of rollers carrying the glass sheet.
Characterized in that the said curving around an axis of curvature transverse to traveling direction is effected by arching the plane of a conveyor roller line at least over a distance corresponding to the added-up length of its oscillating stroke in a manner that, beginning from a horizontal plane, the plane of the roller curves with a continuously diminishing radius of curvature until a desired final radius of curvature is reached, and during the curving process, the tangent of the mid-portion of a curved conveyor section is maintained substantially in a horizontal plane.
3. A method as set forth in claim 2,
Characterized in that the curved plane of the conveyor roller line is returned to flat after tempering but before carrying a bent and tempered glass sheet out of the bending and tempering section.
15. A method of bending a glass sheet to be tempered, comprising the steps of
- carrying the glass sheet on horizontal rollers
- heating the glass sheet for bending and tempering
- curving the heated glass sheet around an axis of curvature transverse to the traveling direction
- effecting the tempering of the curved glass sheet while keeping the glass sheet in a reciprocating or oscillating motion by means of rollers carrying the glass sheet.
Characterized in that the glass sheet is carried onto a bending and tempering section roller conveyor as the latter is in flat condition, whereafter said flat roller conveyor is curved or arched around the axis of curvature transverse to traveling direction while moving the glass sheet, curving of said conveyor is stopped and blowing of cooling air is started to both surfaces of the glass sheet while maintaining said glass sheet in an oscillating motion by means of the rollers of said curved roller conveyor.
Apparatus Claims:
7. A bending and tempering apparatus for glass sheets, comprising a loading station (1), a heating furnace (2), a bending and tempering section (3) and an unloading station(5), heating means (12) in the furnace for heating glass sheets, chilling means (13) in the bending and tempering section for tempering a bent glass sheet, roller conveyors (6 to 11) consisting of horizontal rollers for carrying glass sheets from the loading station (1) to the unloading station (15) through the furnace (2) and the bending and tempering section (3), drive means (M1, M2) for operating the roller conveyors, adapted to drive in an oscillating fashion at least a bending and tempering section roller conveyor (9), characterized in the rollers (9a) of said bending and tempering section roller conveyor (9) are carried by support members (21,22) which are connected with the links (9b) and lever arms (31) are connected to build a support beam, which extends in the traveling direction by varying the angle between the individual support members (21, 22) of the said support beam by means of lever arms (31) and power units (28).
12. An apparatus as set forth in claim 7,
Characterized in that above said roller conveyor (9) to be curved is provided a curved array of air-blowing means (13), that this curved array of air plowing means can be picked up and lowered as a whole, that in a lowered position the curvature of said curved array conforms with the curvature of said conveyor track and in a picked-up position said curved array is adapted to settle in a curvature substantially corresponding to the maximum curvature of conveyor (9).
14. An apparatus as set forth in claim 7,
Characterized in that said cooling-air blower means (13a) below the conveyor are mounted to be pivotable along with the support members (21, 22) of conveyor (9).
[48] The ‘628 Patent has 7 claims and Glaston is asserting 5 of them: claims 1 to 3, 5 and 6. Those claims as set out in the ‘628 Patent are:
1. A bending and tempering station for glass sheets, comprising a roll conveyer (3) in which the relative vertical position of the roles (4) is adjustable for arching the conveyor to the curvature corresponding to a desired degree of bending, lower tempering boxes (5) having top surfaces (9) provided with tempering orifices (6) , and upper tempering boxes (7) having bottom surfaces (10) provided with tempering orifices (8), and tempering boxes (5,7) being movable for bringing said top and bottom surfaces in conformity to the arching of the conveyor (3, characterized in that a number of press rollers (11) are mounted on the upper tempering boxes (7), wherein the rollers (11) are movable between an upper rest position and a lower working position in which the rollers (11) are resiliently pinned down by a spring force.
2. A bending and tempering station as set forth in claim 1, characterized in that said pneumatic spring is a pneumatic cylinder (17).
3. A bending and tempering station as set forth in claim 2, characterized in that said pneumatic spring is a pneumatic cylinder (17) for carrying the roller (11) between the rest position and the working position.
5. A bending and tempering station as set forth in any one of the claims 1-4, characterized in that the rollers (11) are shifted after a glass sheet to be bent to the working position after a glass sheet to be bent has arrived from a furnace (1) onto the conveyor (3) and below the rollers (11).
6. A bending and tempering station as set forth in any one of the claims 3-5, characterized in that a plurality of press rollers (11) is mounted on a common horizontal axle (13) which is reciprocated vertically by means of the pneumatic cylinder (17).
A Person Skilled in the Art
[49] A patent is to be considered from the viewpoint of a person skilled in the art. In this case, the area of expertise is that of glass bending and tempering. Mr. Perämaa gave evidence that a person skilled in the art of glass bending and tempering would be a person involved in the design and development of glass bending and glass tempering machines. This person would be familiar with the mechanical properties of glass and have a background in mechanical engineering and experience in automated glass production. There is no issue that Mr. Perämaa is such a person.
[50] Mr. Perämaa gave evidence that the meaning of the terms used in the ‘257 claims would be understood by “person of ordinary skill” (which I take to be a person skilled in the art) to correspond with the mechanical engineering definitions of the terms. He stated that some terms required further explanation as follows:
‘257 Patent Method Claims
Claims 1, 2, 3, and 15 are for a method of bending glass sheets. Claims 1, 2, and 15 are independent claims. Claim 3 depends on claim 2. All four claims include the following steps:
- carrying the glass sheet on horizontal rollers
- heating the glass sheet for bending and tempering
-