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Dishwasher Detergent Pod Case Deserves “Full Cycle” of Trial: “Express Wash” Summary Judgment Rejected by Court of Appeal

In GEMAK v Jempak, the Federal Court of Appeal set aside a decision granting summary judgment and directed that the matter proceed to a full trial.

Jempak manufactures and sells dishwasher detergent pods. GEMAK sued Jempak for infringement of two patents it owns relating to compositions of dishwasher and laundry detergent. Jempak brought a motion for summary judgment on the basis that there was no infringement of the patents once their claims were construed. The Federal Court granted summary judgment and dismissed the action.

Summary Judgment Was Not Appropriate

On appeal, Justice Mactavish noted the difficulty in assessing the credibility of expert witnesses in complex patent cases on summary judgment motions. This difficulty arises from the fact that witnesses do not appear before the court. Justice Mactavish also urged caution in dealing with motions for summary judgment because the unsuccessful party effectively loses its day in court.

The motion judge rejected the evidence of GEMAK’s expert because she had to be cross-examined twice, because she provided “evasive and defiant responses”, and because the cross-examination was “seriously impaired” by counsel’s objections. As a result, the motion judge relied only on the evidence of Jempak’s expert, concluded that there was no conflicting opinion evidence, and granted summary judgment.

Justice Mactavish held that GEMAK’s expert may simply have been a careful witness that would not allow herself to be pushed around by counsel and that objections by GEMAK’s counsel should not reflect negatively on the expert. As a result, the motion judge committed a palpable and overriding error:

Indeed, there is a fine line between being an objective, firm expert witness and being an advocate for one’s client, and it is difficult to determine whether a witness has crossed that line in the absence of viva voce evidence tendered in open Court.

It was thus a palpable and overriding error on the part of the Federal Court to make the negative credibility findings that it did with respect to the evidence of Dr. Frankenbach based on a transcript of her testimony, and to decide the case in reliance on those findings. [references omitted]

Common General Knowledge Does Not Require a Search

In describing the common general knowledge, the motion judge stated that “the Court must assess what knowledge the skilled person would have obtained through a diligent search …”

Justice Mactavish explained that this improperly conflated the concepts of prior art and common general knowledge:

Prior art is used for specific purposes in patent law, for example, to show that an invention was anticipated or was obvious. Common general knowledge informs the way in which the claims and specifications are read by the POSITA.

Thus, it is no longer required that prior art be available to the POSITA through a reasonably diligent search for it to be potentially relevant for the purpose of the obviousness or anticipation analyses. That said, knowledge that is only discoverable through a reasonably diligent search is not, and has never been, considered to be part of the common general knowledge. The Federal Court thus erred in finding otherwise. [references omitted]

The Federal Court of Appeal’s decision may be found here. The decision on the motion for summary judgment may be found here.