FIBERGLAS CANADA LTD Vs. SPUN ROCK WOOLS LTD

JUDGEMENT

(1.) This appeal, which is brought from a judgment of the Supreme Court of Canada reversing the judgment of the Exchequer Court of Canada, raises in the first place a question as to the validity of certain Letters Patent and, in the second place, questions as to the title of the appellants (the plaintiffs in the proceedings) to sue in respect of any infringement and as to the appropriate relief, if any, to be granted to them.

(2.) The Letters Patent in suit were granted on 4 July 1933, to a Dutch Company called N. V. Mij tot Beheer en Exploitatie van Octrooien, which will be referred to as "Maatschappy", for an invention made by Friedrich Rosengarth and Fritz Hager. Maatschappy was at all material times the legal owner of the patent, but, as it was a company domiciled in Holland, upon the occupation of that country by the German enemy in May 1940, its interest under the patent and under certain agreements to be later mentioned vested in the respondent the Custodian by virtue of the provisions of S. 21 of the Consolidated Regulations respecting Trading with the Enemy 1939. The Custodian was accordingly made a defendant to the action, hereafter mentioned, but no relief was claimed against him and he has taken no part in the proceedings.

(3.) The appellants Fiberglas Canada Ltd., (which will be called "Fiberglas") and Owens Corning Fiberglas Corporation (which will be called "Owens-Corning") claim to be interested in the patent under diverse agreements to which reference will be made later. It is sufficient for the present purpose to say (a) that in the year 1941 Fiberglas commenced an action in the Exchequer Court of Canada against the respondent Spun Rock Wools Ltd. (which will be called "the respondent") and the Custodian claiming to be a licensee of the rights under the patent and alleging that the respondent had infringed the patent and (b) that Owens-Corning were after judgment in the Exchequer Court added as plaintiff in order to cure any defect in the title of Fiberglas to sue.