Some of you may recall “QU-IP”, a series of IP quips we initiated some years ago..to help us see the lighter side of IP and laugh a bit. It’s been a while since the last one, so here goes:
This IP witticism is from a talk given by Professor David Vaver, a renowned IP academic, whom I had the great fortune of being supervised by. He is often cited by the Canadian courts and retired some years ago as head of the IP Centre at the University of Oxford. He is now teaching at Osgoode Law School (Canada). And with this witty maverick around, it’s clearly osgoode as it gets for them.
David Vaver, Does the public understand intellectual property law? Do lawyers? (Keynote address, Meredith memorial lectures, McGill Law School, March 17 2006)
“I was given a speaker’s dream brief: to talk about whatever I wanted so long as it had something to do with the theme of the conference – intellectual property (“IP”). A few suggestions were made in a nice, non-authoritarian way. These could, of course, have been treated the way IP lawyers usually proceed, i.e., by entirely ignoring them. That is called purposive construction, and Canadian and British courts do it all the time. So a British court has read a patent claim to say that “vertical” can also mean “leaning”,1 a decision that comforted builders everywhere. Not to be outdone, a Canadian court last year decided, in construing a claim, that “wet” could also mean “dry”.2 Inhabitants of the Sahara might be surprised; so might those from Vancouver or San Francisco.”
1. Catnic Components Ltd. v. Hill & Smith Ltd., [1982] R.P.C. 183 (H.L.). A claim cove- ring a structure of a lintel that was said to be “vertical” was read to include one that leaned up to 8 degrees, presumably either way.
2. Pfizer Canada Inc. v. Novopharm Ltd., 2005 FC 129 (Fed. Ct.). The patent claim covered making a tablet to a specified formula and dosage “by wet granulation.” While the specification disclosed both wet and dry granulation processes, the court said that the skilled reader would not read the limitation “by wet granulation” as essential, so making a tablet by dry granulation infringed the patent: ibid., §§ 74-81 & 96.
ps: If any of you come across interesting quips, please do send it our way. No incentives or rewards than some heartfelt words of appreciation and the joy of sharing. So please do share.
