Majority
was brought about by the exercise of mechanical skill. It is not the object of the Patent Act to dignify by the name of invention every slight advance in the domain of mechanism.
The judgment of the Exchequer Court ought to be confirmed and the appeal should be dismissed with costs.
Judgment of the Court
RINFRET, J.-This action was brought by the appellant R et J against the respondents for a declaration that a certain Jpatent (No. 288925) granted to the appellant was good, valid and subsisting and that the respondents had infringed the patent. The Exchequer Court of Canada dismissed the action (1) and this is an appeal from the judgment of that court.
The patent relates to a locking device for separable slide fasteners, that is to say: fasteners consisting of two rows of co-operating elements (locking members) which are caused to engage with one another by the passage of a slider along the rows and are disengaged by the movement of the slider in the opposite direction.
The appellant's invention is described as follows in the specification of the patent:
It is claimed that the finger or lug automatically moves by gravity into position, through the recess, between two of the co-operating fastener elements and thus provides locking means whereby the slider is retained against movement in either direction on the stringer. A feature is that by means of this device the movement of the slider may be prevented at any point along the stringer.
The patent was applied for on the 26th of January, 1928, and was granted on the 16th of April, 1929. The infringing article is also a locking device for separable slide fasteners; and, in the judgment appealed from, it is described as follows:
We agree with the appellant that, for the purposes of J. the case, no distinction ought to be made between a travelling and a fixed pull. The invention relates to a mode of locking a slider, not to a mode of attaching the pull; and whether the pull has a fixed or travelling pivot is irrelevant, since it operates in the same way and the substitution of the one for the other has no effect upon the operation of the lock.
It is also immaterial whether the finger or lug reaches the fastener elements through a hole or through a recess; both recess and hole fulfill exactly identical functions. At best, one would be the mechanical equivalent for the other. The appellant's patent shows various embodiments of the invention.
The specification uses the word "recess"; but the claims may be construed to cover indifferently a hole or a recess.
The respondent Prentice commenced to manufacture his slider lock and put it on the market in the United States in the Fall of 1925. It was shown through Canada early in 1926; but the first definite order for the article in this country was in October, 1926.
The respondents pleaded, amongst other things, that the appellant's patent was invalid because the invention was patented or described in printed publications more than two years before the application for the patent; and, at the trial, reference was made to the fastener of M. Gabriel Fontaine, a patent for which was applied for in France, on the 14th of November, 1923, and granted on the 5th of March, 1924. A copy of the patent was produced, as also an enlarged model of the slider used in connection with that fastener. As described in the patent, in the Fontaine device, the pull of the slider is provided with two spaced lugs adjacent its pivot. When the stringers are drawn up through the channels of the slider, as soon as the pull is released, it comes down by force of gravity and the lugs LiGTNINa are pressed against the fastener elements, immediately above the conical edges of the slider, where the fasteners Co.
are in engagement, thus offsetting the fasteners, retaining them against movement and preventing the slider from Co. LD.
working in any direction.
(suit No.
The Fontaine fastener was primarily intended for use 13674)
on footwear. But we can conceive of no reason why it Rinfret J. could not equally be used on any number of other articles where fasteners are employed; and the point is that, in the Fontaine patent, the locking device disclosed is substantially similar, is designed for exactly the same purpose and the disclosure gives the same knowledge as the appellant's patent. Fontaine, in his patent, begins by describing the invention, first in a general way, and then by way of reference to each of the drawings. On the drawings, the slider is marked as number 7, comprising the coupling member 8 and the pull or tab 9. The fastener elements are indicated by No. 6 and the lugs on the pull by Nos. 10 and 11. Other numbers are used to indicate other parts of the device; but we think that if the above numbers are borne in mind, it will be easy to understand the following quotation from the patent:
Le rapprochement des bandes en vue de leur emboitement est obtenu par une pike 7 formant coulisse. Cette pibce particulire comporte deux parties 8, 9 dont l'une peut pivoter autour de l'autre.
La partie 8 qui est creuse, aplatie et cylindro-conique coiffe les extr6mitbs oppos6es des lamelles 6 qui font 16girement saillie h cet effet de sorte que lorsqu'on tire la pikce 7 dans un sens d'une fagon quelconque les lamelles passant. successivement par la partie conique sont rapproch6es lorsqu'elles arrivent dans la partie cylindrique et s'emboitent. La partie 9 porte deux ergots 10, et vient se rabattre, aprbs fermeture de la chaussure, sur la pike 8, sa fenatre 12 recevant la saillie 13 de la pikce 8.
Les ergots 11 viennent alors obturer les sorties de la partie conique de la pi~ce 8 en coinqant les lamelles 6 s'y trouvant A ce moment et emp~chant ainsi le dcrochage des bandes, tant que la piice 9 reste appliquie sur la pike 8.
Pour d6faire Ja chaussure it suffit de relever la pikce 9, de tirer les extr6mit~s des bandes en les 6cartant et le d6crochage a lieu, la pike 8 coulissant le long des bandes dans le sens inverse de l'accrochage. Il reste d'ailleurs entendu que l'invention n'est pas strictement limit&e aux dispositions d6crites qui peuvent varier de forme, de dimensions, de matibre constitutive, etc.
" R~sum6.
Fermeture pour chaussures remplagant le lacet et autres caract6ris6e en ce que les bords du soulier A r6unir portent des bandes compos~es de lamelles m6talliques distinctes dont l'extrimit6 libre forme saillie d'un It will thus be seen that all the essential points in the appellant's patent were already brought out in Fontaine's disclosure.
This would be made still clearer by reference to the drawings accompanying the patent.
The lugs described by Fontaine have complete identity of function with those claimed by the appellant; and they perform that function substantially in the same way. Nor does it matter whether the appellant's article is a modification of the Fontaine device, which it is not necessary to discuss.
(Panyard Machine & Mfg. Co. v. Bowman (1); MacLaughlin v. Lake Erie & Detroit River Ry. Co. (2) ). In Fontaine's, as well as in the appellant's and the respondent's devices, the idea is the same and there is substantial identity in the means of carrying it out. In our view, the difference is a mere variation of details. In Fontaine's, the lugs engage the fastener elements immediately above the conical sides of the slider. In the appellant's, the lugs reach the elements through a recess or a hole in the central part of the slider; in Prentice's, they reach the elements immediately below the slider. The appellant alleged and brought evidence to show that Prentice's was an infringement of its patent. We may assume that the contention is right. But what amounts to infringement, if posterior, should, as a general rule, amount to anticipation, if anterior. Fontaine's disclosure having been patented in France on the 5th of March, 1924, or more than two years prior to the application of the appellant in Canada, this affords sufficient ground for displacing the appellant's patent (Patent Act, sec. 7), which must therefore be declared invalid. Without discussing the other matters involved herein, it follows that the appeal should be dismissed with costs. Appeal dismissed with costs.