VOL. IX.] EXCHEQUER COURT REPORTS. 399 Between THE CHAMBERLIN METAL WEATHER STRIP COMPANY 1905 OF DETROIT; AND THE CHAM- . PL.AINTIFFS; BERLIN METAL WEATHER I May 8. STRIP COMPANY, (LIMITED, .,. J AND WILLIAM PEACE, AND THE PEACE METAL WEATHER STRIP 00M-DEFENDANTS. PANY - Canadian Patent No. 74,708--Infringement—Metal weather strips—Prior American Patent—Narrow construction. The defendants had manufactured a iorin of metallic weather strip in Canada very much nearer to that shown and described in an American patent of a date prior to the Canadian patent, owned by the plaintiffs, than it was to any of the forms bhown and described in the plaintiffs' patent. Held, that if the plaintiffs' patent; was good, it was good only for the particular forms of weather strips shown and described therein ; and that upon the facts proved the defendants had not infringed. THIS was an action for the alleged infringement of a patent for invention. The facts of the case are stated in the reasons for judgment, but for a clearer understanding of the forms of the conflicting devices the following diagrams have been made : - Figure A is a perspective detail view of a portion of the Sims improved metallic weather strip. FIG. A.
400 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 The following drawings are copied from the tracing CHAMBERLIN attached to the patent sued upon, the several figures E L I` ATH ER being thus described in the specification :— STRIP CO. OF Figure B is a transverse section through a portion DETROIT V. of a frame and sash, showing the improved weather PEACE strip in position.. Fig. C is a sectional detail view on METAL WEATHER an enlarged scale, showing the form of strip shown in STRIP co. Fig. B. Figs. D, E and F are views similar to Fig. C, statement illustrating modifications in the form of the strips. of Baca. FIG. F.
VOL. IX.,] EXCHEQUER COURT REPORTS. The following is a tracing of .a section of the metallic weather trip used by the defendants :— February 21st 1905. The case was heard at Toronto. J. 0. Ridout, for .the plaintiff, contended that the American cases requiring great particularity of descrip. tion in the claims do not .apply to cases arising under the Canadian.. Patent Act. The American. Patent Act of 1836 was like ours, but in 1870 this Act was repealed and provision was made for the specifications and claims as two distinct things. Cites Light Co. v. Coiling (1). G. ,Lynch Staunton, K.C. and J. Chisholm defendants .argued that if the plaintiff's patent ',was to be upheld at-all, it could only be good for the precise ,device claimed. ,The defendants had not infringed that device. Gadd v. Mayor THE JUDGE OF THE EXCHEQUER COURT .(now May 8th, •1905,) delivered judgment. The action Is brought to restrain an alleged infringement of letters patent .No.. 74,708 for alleged new and (1) 31 Ont. R. at p. 28. (2) 9 T. L. R. 42. 26 401 1905 CHAMBERLIN METAL W EATHER STRIP CO. OF DETROIT V. PEACE METAL: WEATHER STRIP CO. Argument of touneel. Toronto Auer for the of _Manchester (2). .
402 EXCHEQUER COURT REPORTS, [VOL. IX 190,1 useful improvements in weather strips and guides for CHAMBERLIN windows, which were granted, on the 4th of February, METAL WEATHER 1902, to Hugh Edward Kenny and subsequently as- STRIP Co. DETROIT OF signed to the plaintiffs. The invention claimed relates, as stated in the specification, to certain improvements PEA METAL in weather strips of the class or kind in which a thin WEATHER STRIP Co. bead or rib of metal is secured to the window frames aeon, for and projects into a groove in the sash. It is claimed J.~a sma" that as previously constructed the groove was made of such a width relative to the thickness of the bead or rib that the side walls of the groove would bear against the rib to form a tight joint ; and in damp weather the wood of the sash would swell, causing the rib to 13, 3 gripped laterally by the walla of the groove, thereby rendering it difficult to raise and lower the sash. The object of the invention, as explained in the specification, was to so construct the rib and groove that ample bearing spaces to effect a tight joint would be formed along the edge of the ribs and sides closely adjacent thereto and the bottom of the groove, while the side walls of the groove would not bear against the rib, thereby avoiding any gripping of the ribs by the sash. There is nothing new in this alleged invention, except the particular forms of the beads shown, and as to that the claim made is for a metal weather strip consisting of a base and a rib, formed integral with each other, said rib being formed with a bead or enlargement along its edge substantially as set forth ; and then the drawing shows five different forms of weather strips, or modifications of the general form described. A form of metallic weather strip previously in use is shown in Exhibit " A," being a copy of a patent issued in 1890, from the United States patent office to one Albert Clinton Sims. It consisted of a flat base and a longitudinally raised part or rib at right angles to the fiat base; or a flat strip of suitable metal bent or
VOL. IX.] EXCHEQUER COURT REPORTS. 403 doubled longitudinally to form a raised rib at right 1905 angles to the flat hase. CHAMBERLIN •METAL It is, I think, doubtful whether the forms of weather ÿi :RATHE R strips shown in the Kenny patent are really improve- STDzpTROITor ments upon the form shown in the Sims patent; V. PEACE whether there is in fact either invention or utility to METAL WEATHER support the patent in question here. But I do not rest sTKIP co. my judgment on that aspect of the case; or express Renaona for any opinion in respect thereof. If, however, the patent Jaaga.ent- is good, it is good only for the particular forms of weather strips shown and described therein ; and those which the defendants have been using, as illustrated by the exhibits on file in this case, are very much nearer the form shown and described in the Sims patent than they are to any of the forms shown or described in the Kenny patent. I think it was open to the defendants to use in Canada the form of weather strip that they have been using, and of which the plaintiffs complain, and that they have not infringed the patent on which the action is brought. There; will be judgment for the defendants, with costs. Judgment accordingly. Solicitor forWthe plaintiffs : J. G. Ridout. Solicitors for the defendants : Chisholm 4- Logic.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.