Hollick Solar Systems Ltd. and Conserval Engineering Inc. v. Matrix Energy Inc.
The Plaintiffs alleged patent infringement, trade-mark infringement, passing off and depreciation of the value of the goodwill in the registered trade-mark.
The patent infringement allegation turned on the determination of whether an element of the impugned claims is an essential element. Following the test set out in Improver Corp. v. Remington when addressing a variant, the Court found that the plaintiffs failed to meet their burden of proving, on a balance of probabilities, that the variant does not have a material effect on the way the system works. The Court then determined that a person skilled in the art would have understood that the variant in the Defendant’s system would have a material effect, and that strict compliance was required. Accordingly, the Court found no infringement of the patent.
The Defendant distributed systems designed by the Plaintiffs pursuant to various Distributor Agreements for a period of time, but the Agreement was not renewed. The Plaintiffs alleged that the trade-mark remained on the Defendant’s website, and in various publications beyond the end of the Agreement. The Court found that the trade-mark was used by the Defendant on three occasions, but this use was not to represent the Defendant’s system as that of the Plaintiffs. The Court therefore found no infringement, no passing-off and no depreciation of goodwill.
