Zero Spill Systems (Int’l) Inc. v. Heide, 2015 FCA 115

This is an appeal from a Judgment of the Court, dismissing the action, finding no infringement, and validity of one of the three patents. The Court of Appeal allowed the appeal, in part, by Zero Spill.

At issue were two industrial designs. Zero Spill is a licensee of one Design, which they alleged was infringed and the Respondents own the second Design, which Zero Spill seeks to invalidate. The Court of Appeal remitted the issue of infringement back to the Court on the basis that the Court erred in respect of requiring Zero Spill to lead evidence pursuant paragraph 5.1(a) of the Industrial Design Act. The Court of Appeal found that the Court should have determined the validity of the second design but because of the expiry of the Design in the period between the Court’s judgment and the hearing of the appeal, the validity is now moot and the issue was not remitted to the Court.

Also at issue were infringement and validity of patents. The Court of Appeal considered the issue of construction raised by Zero Spill in respect of one of the patents, and rejected this ground on the basis that it must presume that all of the record was reviewed by the Court. The Court is entitled to prefer certain evidence and that can only be set aside on the basis of palpable and overriding error. The Court of Appeal also found that Zero Spill did not establish palpable and overriding error with respect to infringement. With respect to the second patent, the Court of Appeal found no errors in the construction of the patent and therefore dismissed Zero Spill’s appeal on the issue of infringement. However, the Court of Appeal found that the Court’s approach to anticipation and obviousness was incorrect, and these issues were remitted to the Court for determination for two patents.