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Patents - Parties. McCain Foods Limited v. J.R. Simplot Company
In McCain Foods Limited v. J.R. Simplot Company (Fed CA, 2021) the Federal Court of Appeal considers who may be 'persons claiming under a patentee':[78] A person claiming under the patentee is a person who derives his rights to use the patented invention, at whatever degree, from the patentee: Hospira 2020 at para. 108; see also Signalisation at para. 24; Teva Canada Limited v. Janssen Inc., 2018 FCA 33, 420 D.L.R. (4th) 493 at para. 127. The jurisprudence has held that "“persons claiming under the patentee”" can include exclusive licensees (Spun Rock Wools Ltd. v. Fiberglas Canada Ltd., 1943 CanLII 43 (SCC), [1943] S.C.R. 547, 3 C.P.R. 87), non-exclusive licensees (Armstrong Cork Canada Ltd. v. Domco Industries Ltd., 1982 CanLII 185 (SCC), [1982] 1 S.C.R. 907, 42 N.R. 254), implied licensees (Jay-Lor International Inc. v. Penta Farm Systems Ltd., 2007 FC 358, 59 C.P.R. (4th) 228), and even purchasers of patented products or products used to perform a patented process (Signalisation).
[79] As an infringer (according to the theory of its third party claim), Simplot derives no rights from the patentee, and cannot reasonably be considered to be a person who fits the definition of a person claiming under the patentee. ...
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