Weatherford Canada Ltd. v. Corlac Inc.

Weatherford Canada Ltd. v. Corlac Inc.
Court (s) Database
Federal Court Decisions
Date
2010-06-03
Neutral citation
2010 FC 602
File numbers
T-1236-01
Decision Content
Federal Court
Cour fédérale
Date: 20100603
Docket: T-1236-01
Citation: 2010 FC 602
BETWEEN:
WEATHERFORD CANADA LTD.,
WEATHERFORD CANADA PARTNERSHIP,
EDWARD GRENKE AND GRENCO INDUSTRIES LTD.
Plaintiffs
(Defendants by Counterclaim)
and
CORLAC INC., NATIONAL-OILWELL CANADA LTD.
AND NATIONAL OILWELL INCORPORATED
Defendants
(Plaintiffs by Counterclaim)
REASONS FOR JUDGMENT
INDEX
Para.
I. Introduction........................................................................................................... 1
II. The Parties............................................................................................................ 9
Plaintiffs........................................................................................................ 9
Defendants................................................................................................... 15
III. The Actions........................................................................................................... 18
IV. The Patent............................................................................................................. 26
V. Plaintiffs’ Expert Witnesses.................................................................................... 34
Cam Matthews............................................................................................. 35
Paul Skoczylas............................................................................................. 36
Dr. Richard Salant........................................................................................ 37
VI. Plaintiffs’ Fact Witnesses....................................................................................... 41
Edward Grenke............................................................................................ 42
Wesley Grenke............................................................................................. 45
John Aboussafy............................................................................................ 46
Roland Moneta............................................................................................. 47
Scott Dudley................................................................................................ 48
VII. Defendants’ Expert Witnesses................................................................................ 49
Allan Nelson................................................................................................. 50
Gerard Muller............................................................................................... 51
VIII. Defendants’ Fact Witnesses................................................................................... 54
Art Britton.................................................................................................... 55
Barry George............................................................................................... 58
Ken Krucik.................................................................................................. 59
Shane Fair.................................................................................................... 60
Ronald Johnson............................................................................................ 61
Kurt Uhrich.................................................................................................. 62
Andreas Reincke.......................................................................................... 63
Michael Engelen........................................................................................... 64
Roy Manicke................................................................................................ 65
Magda Torfs................................................................................................ 66
Brian Derewynka.......................................................................................... 67
IX. The Factual Background........................................................................................ 68
X. Issues.................................................................................................................... 114
XI. A. Construction of '937 Patent Claims............................................................... 116
Claim 1........................................................................................................ 123
(1) Seal Cartridge............................................................................ 128
(2) Dynamic Seal............................................................................. 138
Claims 2-5................................................................................................... 148
Claim 6........................................................................................................ 149
Claims 9-12................................................................................................. 156
Claims 13-17............................................................................................... 165
XII. B. Infringement by the Defendants..................................................................... 166
Infringement Analysis.................................................................................... 168
Claim 1........................................................................................................ 182
Claim 6........................................................................................................ 184
Claims 9 and 11........................................................................................... 186
Claims 14-16............................................................................................... 192
Claim 17...................................................................................................... 199
Infringement Conclusions.............................................................................. 200
Liability Issues.............................................................................................. 205
Limitation Periods......................................................................................... 221
Entitlement to Action and Remedies.............................................................. 225
XIII. C. Inventorship of the '937 Patent...................................................................... 235
Edward Grenke............................................................................................ 244
Andreas Reincke.......................................................................................... 255
Michael Engelen........................................................................................... 256
Art Britton.................................................................................................... 261
Walter Torfs................................................................................................. 273
XIV. D. Validity of the '937 Patent............................................................................. 282
Disclosure more than One Year prior to the Filing Date................................. 283
Disclosure to Amoco/Pan Canadian.............................................................. 290
Obviousness by Reason of Prior Disclosure................................................... 319
Misrepresentations/Misleading Statements..................................................... 323
Other Alleged Misrepresentations................................................................. 340
Abandonment............................................................................................... 342
Ambiguous Terms......................................................................................... 354
XV. E. Rectification of the Patent Office................................................................... 356
XVI. F. Infringement by the Plaintiffs.......................................................................... 358
XVII. G. Licence Agreements..................................................................................... 360
XVIII. Conclusion............................................................................................................ 378
PHELAN J.
I. INTRODUCTION
[1] These are the reasons for judgment in an action and counterclaim in respect to Canadian Patent No. 2,095,937 (the '937 Patent) owned by Edward Grenke (Grenke) and licensed to GrenCo Industries Ltd. (GrenCo) which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Inc. and Weatherford Canada Partnership.
[2] The '937 Patent claims a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps (PCPump) that troubled all the heavy oil producers since the early 1980s. An example of a rotary PCPump with the stuffing box is shown below:
[3] There are two parts to a PCPump – a rotor and a stator. The rotor is a steel member that is machined in the form of a single helix. The stator is a steel tube with rubber elastomer bonded to the steel tube and it has a core that is formed in the shape of a double helix. The rotor rotates inside the stator. The single helix rotor and the double helix stator form cavities. As the rotor turns, the cavities progress from bottom to top drawing the liquid to the top – in this case the liquid is oil.
[4] At the top end, surrounding the shaft which turns the rotor, is a stuffing box which is designed to prevent the oil escaping by the shaft. The material inside the stuffing box designed to prevent oil escaping would wear causing oil leakage, unplanned maintenance and repair – the cause of considerable concern amongst heavy oil producers.
[5] This litigation centred on the claim that the Defendants had been infringing, since at least 1999, the '937 Patent in the manufacture and sale of their drive systems for rotary oil well pumps. The Defendants, aside from denying the allegations and attacking the Patent, also counterclaimed against the Plaintiffs, claiming that they, the Defendants, were the owners by assignment/licence of the '937 Patent and that the Plaintiffs had in fact infringed their patent rights.
[6] The two actions were tried together as one, such that the evidence and submissions in one were also the evidence and submissions in the other.
[7] This matter was subject to a bifurcation order under which damages would be tried separately from the issue of liability.
[8] This litigation involved numerous and complex technical and legal issues; however, at its root was an assessment of credibility in respect of inventorship and a consideration of the behaviour of the key actors in this case. While the Court had the opportunity to observe the principal witnesses, the credibility assessment was made more difficult because of the passage of time and the absence of notes and other documents to assist in setting matters in context.
II. THE PARTIES
Plaintiffs
[9] Edward Grenke is a machinist by trade living in the Edmonton area, the controlling shareholder of GrenCo and the claimed inventor and owner of the '937 Patent which was filed May 11, 1993 and issued December 22, 1998.
[10] GrenCo is an Alberta corporation with its head office in Edmonton. The company had, from the 1980s to 1991, worked on plunger pump stuffing box applications and metal heat treating and related work. In 1990 it became a distributor of equipment seals for the German company Martin Merkel GmbH (Merkel) in Western Canada, mainly to the oil and gas and pulp and paper industries. It ultimately became the patent licensee of the '937 Patent.
[11] The Plaintiff, Weatherford Canada Ltd. (corporate number 2010240824) (Weatherford Canada) is an Alberta corporation with a head office in Calgary, Alberta. It claimed as a person claiming under the patentee, being the amalgamation successor to Weatherford PC Pump Ltd. who was the sole sub-licensee from GrenCo from February 11, 2000 until February 1, 2001.
[12] The Plaintiff, Weatherford Canada Partnership (Weatherford Partnership), claims as a person claiming under the patentee, the sole sub-licensee of GrenCo from February 1, 2001 to the present.
[13] Weatherford Canada is the successor through multiple amalgamations commencing with Highland Corod Inc., a company at which a key figure in this litigation, Art Britton, worked commencing in October 1995. Weatherford Partnership was formed through the transfer of assets from Weatherford Artificial Lift Systems Canada Ltd. (a successor of Weatherford PC Pump Ltd., the first licensee from GrenCo) and from a predecessor corporation of Weatherford Canada.
[14] The various corporate reorganizations are not challenged here but the state of the licences from GrenCo is. For ease of reference, the term “Weatherford Plaintiffs” refers to either or both of Weatherford Canada and Weatherford Partnership (as the case may be), as well as their predecessors, unless otherwise stipulated or apparent from the context.
Defendants
[15] The Defendant Corlac Inc. (Corlac) is an Alberta corporation with a registered head office in Lloydminster. Corlac Inc. (Corlac) was the parent company of Corlac Equipment Ltd. (Corlac Equipment) which manufactured and assembled equipment for oil producers. Prior to the purchase of Corlac Equipment by National-Oilwell Canada Ltd. (NOC), Corlac owned all the shares of Corlac Equipment. Corlac Equipment was responsible for the manufacture and sale of drive heads and stuffing boxes.
[16] NOC is an Alberta corporation, with its registered office in Calgary, Alberta. It purchased the shares of Corlac Equipment from Corlac on November 20, 2003 and on January 1, 2004, NOC amalgamated with Corlac Equipment. NOC reports its financial information as part of the financial filings of National Oilwell Varco Inc.
[17] The Defendant National Oilwell Incorporated is now known as National Oilwell Varco Inc. (NOI, NOV respectively). NOV is a corporation established under the laws of Delaware with a head office in Houston, Texas and is the ultimate parent of NOC.
III. THE ACTIONS
[18] Between the time of initiation by the Plaintiffs of this action for infringement and the trial, the pleadings were subject to a number of amendments, reiterations and validations. In the action by the Plaintiffs, they seek a declaration that the '937 Patent, and in particular claims 1, 2, 3 and 6 to 17 inclusive, are valid and have been infringed by the Defendants. They also seek relief in the nature of an injunction, destruction of infringed materials and damages or accounting, including exemplary punitive and aggravated damages along with pre-judgment and post-judgment interest. In essence, the Plaintiffs claim that the Defendants manufactured and sold drive systems for rotary oil well pumps including an assembly for restraining oil leakage, all of which infringes the claims in the '937 Patent as stated above. The Plaintiffs also claim that the Defendants have induced and procured others including their customers to infringe the '937 Patent.
[19] The Plaintiffs also claim that the sealing devices were made and sold through NOC’s predecessor Corlac Equipment and that NOI (now NOV) is a directing mind behind the infringing activities of NOC and is therefore liable for such activities.
[20] The Plaintiffs assert, in addition, that Corlac and Corlac Equipment each infringed the '937 Patent in the same manner and that Corlac was a directing mind behind the infringing activities of Corlac Equipment and Corlac Industries (1998) Ltd. and is therefore liable for those activities. NOI is alleged to have purchased or orchestrated and directed the purchase of Corlac Equipment knowing of the ongoing infringing activities of the Corlac companies.
[21] The Defendants’ basic defence is that Grenke was not entitled to the '937 Patent, in that he was not an inventor thereof, and therefore the Weatherford Plaintiffs have no valid rights under the '937 Patent. In respect of infringement, the Defendants claim the usual broad denials of invalidity and infringement and further challenge the claim for damages on, inter alia, the remoteness of damage and the absence of profit.
[22] The Defendants further claim that the '937 Patent is invalid because the subject matter of the patent was disclosed more than one year prior to the filing date, because Grenke was not the true inventor and because the patent was void by virtue of untrue material allegations in the patent petition which named Grenke and Walter Torfs as inventor. The Defendants claimed the true inventor to be Art Britton and/or Walter Torfs or, alternatively, a number of other named individuals.
[23] The Defendants further claim invalidity on the basis of untrue material misstatements by Grenke in the 1994 amendments to the petition which had the effect of removing Walter Torfs as an inventor from the patent petition. The Defendants also claim invalidity on the basis of abandonment by virtue of failure to deal in good faith with the Patent Office, that the asserted claims of the '937 Patent are obscure and ambiguous and the patent is broader in scope than the alleged invention.
[24] The Defendants then counterclaim for a declaration that the '937 Patent is invalid and alternatively, if the patent is valid, NOC claimed for an order pursuant to section 52 of the Patent Act that the entry and the records of the Canadian Patent Office relating to the title of '937 Patent be expunged and that the title be varied to name Art Britton as the true inventor and National-Oilwell Canada Ltd. as the owner.
[25] The Defendants, Plaintiffs by Counterclaim, also sought a declaration that the patent, and in particular claims 1, 2, 3 and 6-17, have been infringed by the Plaintiffs Grenke, GrenCo and the Weatherford Plaintiffs. The Defendants also seek the usual orders in the nature of injunction, delivery up, damages and disgorgement of profit.
IV. THE PATENT
[26] The '937 Patent was designed to address a problem common in the heavy oil industry in North-Eastern Alberta and North-Western Saskatchewan where heavy oil wells which use PCPumps were experiencing failures of their stuffing boxes.
[27] The PCPumps operate the oil well by turning a shaft which was sunk into the ground and which drove a number of sucker rods (long pieces of tubing made up of inter-connected rods) which went out to the pockets that contained the oil. The sucker rods turned a stator (device somewhat akin to an auger) which then drew up the oil to the surface. Some of these sucker rods would extend several kilometres underground.
[28] The oil coming from these pockets contained elements of dirt, salt and sand. The existing stuffing boxes – the device which sealed off the top of the oil well from the oil being drawn up – had the rotating shaft running through it. The combination of friction in the stuffing box and the pressure and debris coming up from below ground caused the stuffing boxes to fail. Failure of the stuffing boxes resulted in loss of oil, environmental damage and unplanned shut down of the wells in order to be able to conduct the necessary repairs. All the oil companies in the area experienced the same problem and all were extremely interested in finding a solution to the stuffing box failures or at least a manner by which they could anticipate when the stuffing box repairs would be necessary so that planned maintenance could be undertaken. The '937 Patent was designed to address this problem and to allow for planned maintenance by having the seals in the stuffing box fail in sequence and by permitting inspection of the progress of seal failure.
[29] The '937 Patent is described as:
An assembly for restraining oil leakage in a rotary oil well pump includes a stationary member and a rotary member. The rotary member is secured to the rotating rod and is sealed against the rod by conventional compressed packing. The rotary member has a cylindrical portion rotating with a cylindrical recess of the stationary member, with an annular recess defined between them. The recess contains two or more annular seal cartridges stacked one after the other in the annular space. The cartridges are designed to individually resist the ingress of the pressurized oil, so that leakage takes place sequentially past the individual cartridges. Leak passages are provided in the stationary member and are in communication with each of the cartridges respectively. When oil appears at any given leak passage, this signifies that the oil has bridged the defences of that cartridge and any cartridge or cartridges which are upstream of the leaking cartridge.
[30] The Patent’s field of invention is:
This invention relates generally to the oil production industry, and has to do particularly with improving the efficiency of the seals used to seal a rotary rod of a progressive gravity [sic] oil well pump, in order to prevent leakage of oil.
[31] The '937 Patent describes the background of the invention and the problem alluded to earlier.
Many conventional oil wells are operated by a downhole pump at or close to the bottom of the well, the pump being of a conventional reciprocating kind actuated by a rod string which in turn is reciprocated vertically by a pump jack. Recently, many conventional reciprocating pumps have been replaced by rotary-drive progressive cavity pumps. The rotary pumps are particularly suited for the production of crude oil laden with sand and water.
In the conventional vertically reciprocating pumps, the apparatus is typically constructed in such a way that a single stuffing box provides control of leakage and loss of oil. This conventional stuffing box is stationary and is secured to a stationary housing. The part of the upper portion of the rod which actually contacts the stuffing is usually highly polished, thus ensuring minimal leakage and minimal damage to the packing material. With the introduction of rotary pumps, it has been generally found that, if the conventional stuffing box (developed for vertical pumps) is used for the rotary pumps, oil leakage develops relatively early, requiring frequent maintenance and frequent replacement of the packing material.
[32] The '937 Patent contains a broad statement of the invention:
Broadly stated, the present invention provides an improved assembly for restraining oil leakage from rotary oil well pumps by providing a special sleeve to surround the rod with packing, the sleeve rotating with the rod and therefore not requiring a dynamic seal between them. The sleeve in turn is rotatably mounted within a recess defined by a stationary member, and a plurality of annular seal cartridges are provided to occupy the space between the sleeve and the stationary member. The seal cartridges are constructed in such a way as to resist the leakage of oil on a sequential basis. Thus, oil must first get past an initial seal cartridge before gaining access to the second in line, and the second cartridge must break down before the oil gains access to the third cartridge. Leak passages corresponding to the plurality of seal cartridges indicate by the appearance of oil the furthest downstream cartridge to which the oil has gained access.
[33] For ease of reference, the claims being challenged by the Defendants and being asserted by the Plaintiffs are set forth in Annex A to this judgment.
V. PLAINTIFFS’ EXPERT WITNESSES
[34] The Plaintiffs called two expert witnesses in direct, Cam Matthews (Matthews) and Paul Skoczylas (Skoczylas) and one expert witness in reply, Dr. Richard Salant (Salant).
Cam Matthews
[35] Matthews was qualified to give testimony about the impact of failures in and the functionality of stuffing boxes in oil production with the limitation that he was not an expert on seals or stuffing boxes. He also testified as a fact witness concerning the practice in the oil industry relating to the confidentiality of test equipment. Matthews is an employee of C-FER Technologies which is a consulting company for whom both he and Skoczylas work.
Paul Skoczylas
[36] Skoczylas was qualified as an expert in mechanical engineering with some knowledge of PCPumps.
Dr. Richard Salant
[37] Dr. Salant was accepted by the Court as a mechanical engineering and seal expert generally in the field of sealing rotary shafts but not as an expert in PCPumps or oil tools generally. Dr. Salant has a long career in research and teaching, particularly at the Georgia Institute of Technology. He has written a vast number of papers on the subject of seals and sealing devices and he holds six patents relating to pumping and sealing technologies.
[38] Dr. Salant’s evidence which rebutted that of the evidence of the Defendants’ experts was clear, cogent and persuasive, both in written form and in his oral testimony. He survived a detailed and excellent cross-examination and survived it largely unblemished. His evidence was delivered in a manner which was helpful to the Court, non-combative, and to the point.
[39] The Defendants’ criticism that he was not an expert in the oil industry is not truly significant, given that he was to address seals and sealing technology which is at the core of this litigation. Except for the fact that he is educated and experienced far beyond the “notional skilled person”, he most closely replicated that skill set which he defined and which the parties have generally accepted as the “person skilled in the art” – being a mechanical engineer who has dealt with the design, evaluation or application of sealing methods for a range of services over a period of at least five years. The Defendants would have added a mechanical technologist that had acquired a practical knowledge of the operation of various seal designs and various services over the span of at least 10 years and/or a millwright or machinist mechanically inclined with experience in the field of oil and gas drilling or production, or, alternatively, who have attended courses or seminars dealing with such areas. The essential field of knowledge was seals and sealing methods.
[40] The Court accepts Dr. Salant’s evidence and prefers it over that of the evidence of the Defendants, most particularly evidence of Gerard Muller.
VI. PLAINTIFFS’ FACT WITNESSES
[41] The Plaintiffs called as fact witnesses Edward Grenke, Wesley Grenke, John Aboussafy, Roland Moneta and Scott Dudley.
Edward Grenke
[42] Edward Grenke’s testimony was essentially the cornerstone of the Plaintiffs’ case in terms of the development and inventorship of the '937 Patent, the dealings with the customers Amoco and Pan-Canadian Oil, his relationship with Art Britton and his agreements and relationship with Walter Torfs. He also testified in respect of the changes made to filings with the Canadian Patent Office wherein Walter Torfs’ name was removed as an inventor, a subject matter on which the Defendants placed considerable reliance as evidence of bad faith and false and misleading dealings with the Patent Office.
[43] Grenke’s evidence suffered from the same disability of many witnesses – the passage of time and the absence of corroborative documents. He was also experiencing some medical difficulties. Taking these factors into account nevertheless, he was vague about some details which might not have assisted him and obviously motivated to put the best face on his own activities.
[44] While the Court approaches his evidence with some caution, the core of his narrative was consistent with other evidence and was more believable than that of other witnesses who tended to downgrade Grenke’s activities in inventing and creating a useful invention. The Court generally prefers his evidence to that of opposing witnesses, particularly Art Britton. On a balance of probabilities (more likely than not) test, Grenke’s evidence is generally accepted unless otherwise indicated.
Wesley Grenke
[45] Wesley Grenke is the son of Edward Grenke and works for GrenCo. Wes Grenke’s evidence was not particularly pertinent to the case in that he was largely supporting his father’s evidence (as one would expect). The testimony was not particularly persuasive or germane and suffered from the fact that he sat through his father’s evidence and was well aware of the stakes involved in this litigation and the competing stories being advanced. The Court is therefore giving less weight to his evidence than might otherwise be the case.
John Aboussafy
[46] John Aboussafy is the Global Business Unit Vice-President for Fluid Power Systems, a part of the Weatherford Canada Partnership. In 1995 he was a general manager for Highland/Corod and was responsible for hiring Art Britton (Britton) in October 1995 after Britton had ceased employment with GrenCo. He was knowledgeable about the relevant aspects of the business and the relationship between GrenCo and the Weatherford companies and their royalty arrangements. He gave evidence about Britton joining Highland/Corod and his selling of a line of variable frequency device motors (VFD). He spoke also to Britton’s dissatisfaction with not being named as an inventor of the Grenke patent.
Roland Moneta
[47] Roland Moneta is the Operations Manager with Weatherford Canada Partnership and as of 2006 he was responsible for the licence agreements with Weatherford. His evidence was helpful in understanding the relationship between GrenCo and the Weatherford companies and the corporate history but he had little personal knowledge of details of the disputes regarding royalties.
Scott Dudley
[48] Scott Dudley was a production foreman at Amoco in the early 1990s but was not part of the maintenance group on the Amoco site at Elk Point at which Britton worked. He described the problems with the PCPumps and some of the efforts being made by Amoco to find a resolution for the leaking stuffing box problem. He gave evidence as to the ingenuity of Grenke’s concept as well as evidence about public access to oil sites, and about the confidentiality of testing and testing equipment.
VII. DEFENDANTS’ EXPERT WITNESSES
[49] The Defendants called two expert witnesses, Allan Nelson and Gerard Muller.
Allan Nelson
[50] Mr. Nelson was accepted as an expert in mechanical engineering with experience in oil field equipment. Nelson’s evidence was directed in part towards the prior art and the obviousness which the Defendants claim in respect of the '937 Patent. He also spoke to the absence of infringement of the Corlac device by not having a “dynamic knife edge” in the packing cartridge. His evidence was at times vague and outdated and while he testified as to the search for a solution to the industry problem, he was unable to articulate a reason or an explanation, that if the solution in the '937 Patent was so obvious, why no one else had discovered it previously.
Gerard Muller
[51] Gerard Muller was accepted as an expert in mechanical engineering and sales for rotary pumps generally and rotary pumps for use in oil production and processing in particular. He gave his analysis of the claims and of the validity and infringement issues. He also spoke to the functions and nature of seals and seal cartridges. His evidence was the cornerstone of the Defendants’ attack on the Plaintiffs’ patent and the Defendants’ explanation of non-infringement of the '937 Patent.
[52] Muller’s testimony did not stand up under cross-examination and he was shown to be evasive, aggressive, arrogant and unhelpful. Mr. Muller’s evidence was significantly undermined by his failure to directly answer questions which admitted of only a direct answer, and by his disrespect and arrogance towards opposing counsel and his longwinded diatribes in giving unresponsive answers.
[53] The Court must conclude that his evidence was of little specific assistance and particularly where it conflicted with that of the Plaintiffs and in particular Dr. Salant, the Court accepts the Plaintiffs’ evidence. While no doubt sincere in trying to assist his client, Mr. Muller was apparently unaware of the obligations that an expert owes to the Court and the assistance which an expert is to render in aiding the Court’s understanding.
VIII. DEFENDANTS’ FACT WITNESSES
[54] The Defendants called as fact witnesses Brian Derewynka, Art Britton, Barry George, Ken Krucik, Shane Fair, Ronald Johnson, Kurt Uhrich, Roy Manicke, Andreas Reincke, Michael Engelen and Magda Torfs.
Art Britton
[55] Art Britton was the principal antagonist in this contest. He testified as to his involvement in developing the rotating stuffing box and his claim that it was his “idea” which was stolen by Grenke, the confidentiality surrounding the Amoco local unit at Elk Point and his sales activities and other career highlights, both while he was with GrenCo and after leaving GrenCo.
[56] Britton obviously felt that he had been cheated out of credit for his contribution to the '937 Patent. He had a clear and continuing animus against Grenke, best summed up as anything which harmed Grenke was of comfort to Britton. That animus so coloured Britton’s evidence that the Court cannot depend on it to any great extent. Britton’s evidence also suffered from faulty recollection on key matters including but not limited to the source of his own stuffing box concept.
[57] Britton, who took no steps to assert any alleged patent rights during or after he left GrenCo, assigned his rights much later to what became the Defendants and now contends that it was principally he who invented the stuffing box solution. That is an untenable position given all the credible evidence in this case.
Barry George
[58] Barry George was a witness called under subpoena and compensated for his time – a point made by the Plaintiffs but which quite frankly does not undermine the strength of his evidence. It would be unusual in today’s circumstances that one could easily secure witnesses without at least compensating for their time and expenses. George’s testimony revolved around the Amoco EI (sometimes called CI) (a maintenance group) meetings in the late fall of 1990 and early winter of 1991 regarding the solutions to stuffing box leakage problems. George’s testimony suffered from the problem earlier alluded to by the Court of the recollection of events that are well in excess of 10 years past. Therefore, the specifics of what was said or done on any particular date are highly questionable. This does not undermine the integrity or the honesty of the witness’ evidence but simply its reliability.
Ken Krucik
[59] Ken Krucik was likewise a member of the Amoco maintenance team in the early 1990s and participated in the Amoco EI meetings in the late fall of 1990 and early winter of 1991. His evidence suffered from the same frailties as that of George and all that it established was that in and about those dates there was considerable discussion on the problems of stuffing box leakage which is consistent with other evidence before the Court.
Shane Fair
[60] Shane Fair worked at the Elk Point site in 1991 and was responsible for reporting on the first stuffing box delivered to Amoco and the result of its operation.
Ronald Johnson
[61] Ronald Johnson was the district foreman at Amoco Elk Point facility in 1990 and was Britton’s direct supervisor. His evidence related particularly to the absence of a specific confidentiality agreement with respect to the test equipment. He described a generally corroborative relationship between Amoco and GrenCo. Finally, he confirmed that Amoco’s lawyers in Chicago were not interested in asserting any patent rights in respect of the first units delivered to Amoco. He confirmed that for any member of the general public to see the actual mechanics of the PCPump, including the stuffing box equipment, they would have been prevented from doing so by Amoco employees. Importantly, he confirmed that Amoco considered that any testing and development of product such as the stuffing box was confidential within the company.
Kurt Uhrich
[62] Kurt Uhrich was the production engineer for the Amoco Elk Point facility in January/February 1991 and reported to Johnson. His evidence was to some extent contrary to that of his supervisor, Johnson, in that he testified that there was no confidentiality surrounding the equipment or the tests of the use of the first devices from GrenCo. As indicated later, the Court concludes that Johnson’s evidence, as a more senior employee of Amoco, more closely reflects the corporate position and the understanding between Amoco and Grenke/GrenCo.
Andreas Reincke
[63] Andreas Reincke was an application engineer working at Merkel in Hamburg, Germany in 1991. His testimony related to the visit in April 1991 by Grenke and Britton. While he tended to downplay the inventiveness of Grenke’s device, his actual recollection of specifics of the meeting and what one person contributed or knew at the time was vague and unreliable. His chief complaint seemed to be that he was not named as an inventor on the patent.
Michael Engelen
[64] Michael Engelen was involved in the design work and development of seals and sealing arrangements at Merkel. He claimed that the design work and ideas for Grenke’s invention, in particular a seminal document (Exhibit 10, P145), was his idea and that he contributed a number of other ideas to the eventual patent. He likewise seemed to complain that he was not named on the patent. His evidence was largely directed at claiming a great deal of the inventiveness in the '937 Patent despite the fact that he had no idea whether those ideas would work and his recollection of specifics suffered the same difficulty as that of Uhrich.
Roy Manicke
[65] Roy Manicke worked for GrenCo between 1989 and 1995 and his evidence related to the relationship between Britton and Grenke, Britton’s role in designing new equipment at GrenCo and the design and manufacture of stand-alone rotating stuffing box units. He also gave testimony with respect to the manner in which items were shipped from GrenCo and the requirement for packing slips and related documents. He also indicated that Grenke had suggested that Britton had an idea and that it would “make them a lot of money”. He was unceremoniously let go by Grenke and it was apparent that circumstance coloured his view of Grenke.
Magda Torfs
[66] Magda Torfs was the widow and executor of the late Walter Torfs, the former president of Flender Canada. Walter Torfs was to work with Grenke in the development of the solution to oil leakage problems and the creation of the integrated drive unit to operate with the stuffing box. Her evidence, overlaid with the desire to protect her late husband’s good name, was directed to his contribution to the integrated drive unit and to the '937 Patent. She confirmed that she had signed away any rights that she or her husband’s estate might have in the '937 Patent (if any) and had done so after speaking with her son-in-law who is a lawyer. She had no specific knowledge of what was done or contributed as between Grenke and her husband and her efforts to decipher documents to prove her husband’s contribution, while well intentioned, were of little assistance to the Court.
Brian Derewynka
[67] Brian Derewynka is an employee of Weatherford Canada and had previously been a maintenance foreman and mechanic with Pan-Canadian from 1990 to 1994. He was called as a witness by the Defendants and declared adverse. He testified as to the purchase of stuffing boxes in 1992 including the handling of the first unit delivered to Pan-Canadian and the possibility that invoicing for product could follow after the product was received.
IX. THE FACTUAL BACKGROUND
[68] By the late 1980s there was increasing concern about the problem of leaking stuffing boxes on rotary PCPumps which had been experienced by the heavy