Whirlpool Corp. v. Maytag Corp.

Binnie J.

1 This is a patent case commenced by Whirlpool Corporation and its Canadian subsidiary, Inglis Limited, alleging infringement of Canadian patent 1,095,734 (the “'734 patent”) relating to clothes-washing machines by the Maytag Corporation and its Canadian subsidiaries. The same claims, plus others, had been asserted a year earlier against the General Electric Company and its Canadian subsidiary, Camco Inc. (“Camco”). Both actions assert Whirlpool's monopoly over a novel type of agitator in laundry tubs, namely a “dual action” spindle that features a lower oscillating agitator and an upper auger which combine to give the laundry load a better scrub.

2The present case differs from that of Camco in that only claims 1 to 5, 7 and 9 to 13 of the '734 patent (the “intermittent drive claims”) are in issue in the appeal. Allegations concerning infringement of claims 6, 8 and 14 of the '734 patent (the “continuous drive claims”) were withdrawn.

3The Camco action proceeded to trial before Cullen J., and by judgment August 18, 1997, the Whirlpool patents were held to be valid and one of the patents, infringed. Whirlpool then moved in this case for judgment on September 9, 1997. The judgment was consented to on a “without prejudice” basis preserving Maytag's right of appeal with respect to the issue of the validity of the '734 patent. The trial judgment of Hugessen J. explicitly adopted the reasons for judgment of Cullen J. in Whirlpool Corp. v. Camco Inc. (1997), 76 C.P.R. (3d) 150 in so far as they dealt with the '734 patent, with the following additional facts: (i) The defendants' infringing agitator, sold under the Loadsensor and Dependable Care trademarks, is aptly described by and infringes claims 1 through 5, 7, and 9 through 13 of Canadian patent 1,095,734; and, (ii) The defendants had full knowledge of Canadian patent 1,095,734 at the time that they decided to introduce their infringing products into the Canadian market and chose to introduce their products in spite of that knowledge.

4The Maytag appeal was heard by the Federal Court of Appeal at the same time as the Camco appeal. Both appeals were dismissed on January 22, 1999 with a single set of reasons now reported at (1999), 85 C.P.R. (3d) 129.

5In this Court, the appeals were again heard together. In the companion judgment of Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067, 2000 SCC 67, released concurrently, the attack on the validity of the '734 patent is rejected. Those reasons in respect of the validity of the '734 patent apply equally to the present appeal. It is conceded by Maytag that if the '734 patent is valid, then the Maytag machines infringe.

6This appeal is therefore dismissed. The respondents are entitled to their costs of these proceedings in so far as such costs were incurred over and above those incurred in the Camco appeal. Appeal dismissed with costs. Solicitors for the appellants: Smart & Biggar, Ottawa; Sim, Hughes, Ashton & McKay, Toronto. Solicitors for the respondents: Barrigar & Moss, Toronto.