Tensar v Enviro-Pro Affirmed on the Facts

Tensar Technologies, Limited v Enviro-Pro Geosynthetics, Ltd 2021 FCA 3 Locke JA: Gauthier, de Montigny JJA aff’g 2019 FC 277 Manson J

2,491,858

At trial, Manson J held that Tensar’s 858 patent was valid but not infringed in a decision that turned primarily on the evidence, as discussed here. The FCA has now affirmed on the basis that all of Manson J’s conclusions were open to him on the record, and Tensar had therefore not established that Manson J had made any reviewable error.

Locke JA concluded by noting that

[48] In the end, it may be that the respondent’s Tri-Grid products use the general idea described in the 858 Patent. This may cause great frustration to the appellants, but it is not enough to establish patent infringement. Infringement focuses on the claims of the patent (not the description therein of the invention), and requires that the allegedly infringing product incorporate all of the essential elements of at least one of the claims. If the claims have a different focus than the disclosure, which is not uncommon, then there is room for the described invention to be used without infringing any of the claims of the patent. In addition, the burden to establish infringement is on the patentee (the appellants here), and the evidence in this case did not satisfy the Trial Judge. That conclusion was open to him on this record.