Bourgault Industries Ltd. has won the second round in a three-year legal battle with Flexi-Coil Ltd. over a patent infringement.
The Federal Court of Appeal ruled in favor of the St. Brieux, Sask., equipment manufacturer in a unanimous judgment delivered March 3 in
Ottawa.
The three appeal court judges upheld an earlier ruling by a lower court that Flexi-Coil had infringed on Bourgault’s packer bar patent.
Gerry Bourgault is elated with the ruling.
“Our company depends on new and innovative designs to be successful in the marketplace. We’re very much delighted by this outcome,” said the president of Bourgault Industries.
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He said it’s important that a company like his be able to protect its intellectual property.
“We have more confidence in the system that we will be able to do that from here on in.”
A spokesperson for Saskatoon-based Flexi-Coil had little to say about last week’s ruling: “We have lost the appeal and at this time we have not decided whether to take it to a higher court,” said Darrel Schindel.
If Flexi-Coil decides to appeal the decision, the case could go before the Supreme Court of Canada.
Bourgault launched its revolutionary packer bar at a dealer show in October 1988. About four months later, Flexi-Coil came out with a similar unit.
Bourgault filed a statement of claim in November 1995, alleging Flexi-Coil had infringed on its Canadian patent, number 1,277,863, which was issued Dec. 18, 1990. The Federal Court ruled Feb. 27, 1998, that Flexi-Coil had infringed on Bourgault’s patent.
Bourgault’s packer bar was designed for use in conjunction with cultivators and air seeders as part of a one-pass seeding system. Its fold-up wing design made it easy to maneuver and allowed farmers to back up.
“It made pulling a packer bar very feasible behind an air seeder, whereas previous to that, anything that was pulled behind there was considered very clumsy,” said Bourgault.
The packer bars come in sizes ranging from 24 to 60 feet wide. The price for the 24-footers is $10,000 and the 60-footers go for $28,000.
It was a good seller in the early years, but sales have tapered off with the move towards less cultivation and zero-till seeding, he said.
The next step in the legal process is something called a reference, which is another trial to determine damages. No date has been set for that.
Bourgault has the option of electing for either damages or profits. In other words, the company can try to get back what it lost or what Flexi-Coil gained as a result of the infringement. The manufacturer expects to make that decision by the end of this week.
Bourgault is not willing to estimate the amount of money the company will be rewarded, saying that will have to be worked out by the lawyers.
Meanwhile, the company is embroiled in another legal battle with Flexi-Coil over allegations that Flexi-Coil infringed on one of Bourgault’s Canadian sprayer patents. That case has not yet gone to trial.
