Background
GEMAK TRUST ("GEMAK") owns two patents claiming dishwasher and laundry detergent compositions.
-
making credibility findings regarding an expert witness that were not open to it on a motion for summary judgment;
- misunderstanding the scope of "common general knowledge"; and
- disregarding evidence relating to the testing of
Jempak's detergent products. - not all information available to the skilled person is necessarily common general knowledge;6 and
- common general knowledge informs the way in which the claims and specifications of a patent are read by a person skilled in the art.7
Pitfalls of Making Credibility Findings on Summary Judgment Motions
In FC actions that proceed by way of summary judgment, only affidavits and other documentary evidence are presented before the Court, and the Court has no ability to hear viva voce testimony. At the FC level in the present matter, and based on a transcript of the testimony provided by GEMAK's expert, the FC characterized GEMAK's expert as "evasive and defiant" and concluded that she "failed to provide fair, objective and non-partisan opinions, which ended up tainting her entire evidence".1 Consequently, the FC ascribed little or no weight to her testimony, and relied almost exclusively on the evidence of
In reviewing the transcript of testimony provided by GEMAK's expert, the
The
Information Found Through a Reasonably Diligent Search Not Part of Common General Knowledge
The FC asserted that, when determining what constitutes "common general knowledge", a court must determine "what knowledge the skilled person would have obtained through a diligent search conducted using the means available at the relevant time."4
The
-
common general knowledge does not include all of the information in the public domain;5
Per the
Expert Opinion on Infringement Need Not be Provided from Perspective of the POSITA
For the action before the FC,
The FC disregarded GEMAK's expert's testimony on the basis that he did not have experience with detergent formulations, and that he therefore did not provide an opinion from the perspective of the person of skill in the art (POSITA) with respect to the patents.
The
Conclusion and Takeaways
For the foregoing reasons, the
This decision highlights the limitations of summary judgment motions in patent infringement actions, and may mark a shift in the recent trend in litigation towards increased use of summary proceedings for resolving patent cases. The
Footnotes
1 Gemak v
2
3 Ibid at para 91.
4 Supra note 1 at para 97.
5 Supra note 2 at para 95.
6 Supra note 2 at para 96.
7 Supra note 2 at para 98.
8 Supra note 2 at para 100.
9 Supra note 2 at para 108.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
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