Yorkton company did not infringe on Regina rival's roasted flaxseed patent: Federal Court

A Yorkton, Sask., company did not use a Regina-based competitor's patented method of roasting flaxseed, according to a judgment from the Federal Court of Canada.

Regina's CanMar Foods Ltd. had filed a claim against TA Foods Ltd. last December, saying it became aware its Yorkton rival was advertising "roasted flax" products on its website. CanMar alleged TA Foods displayed a similarly worded banner at a trade conference in Saskatoon the previous August.

TA Foods, though, argued there was no patent infringement and filed for a summary judgment — a judgment without a full trial.

In a Sept. 25 decision, Justice Michael D. Manson granted the summary judgment, ruling that "two essential elements" in CanMar Foods' flaxseed roasting process are not duplicated by TA Foods — specifically, heating oilseed "in a stream of air" and an "insulated or partially insulated roasting chamber or tower."

TA Foods cooks its oilseed by subjecting it to infrared radiation, according to Manson's ruling.

Quick decision

Mike Popowich, a co-owner of TA Foods, said he is very happy that the judge decided the case didn't even need to go to trial.

"In this kind of situation when a summary judgment is granted in a patent infringement case with costs, it shows how lopsided the case potentially was," he said.

Popowich said he hopes this case helps protect companies in the same situation.

"Hopefully it will make it better for companies in the future that might be accused or sued to be able to resolve those kind of situations quickly, and at the least possible cost to everybody involved," he said.

Popowich said his company was "definitely surprised" CanMar Foods decided to take legal action. Roasted flaxseed makes up an "extremely small" part of TA Foods' business, with no products currently for sale in Canada, he said.

Both companies are among the three flax suppliers listed on the Flax Council of Canada website that offer roasted flaxseed products.

Case getting attention in patent law community

Patrick Smith, one of the lawyers who represented TA Foods, said a patent infringement case in Canada is rarely decided this early on in the process.

"In terms of the court actually dismissing patent action by way of summary judgment, I'm not aware of the Federal Court doing that in the last decade, at least," he said.

Smith said this case dominated discussion at the recent annual meeting of the Intellectual Property Institute of Canada, calling it "the most important [intellectual property] patent case from the last year."

He said the ruling was also the court's first decision interpreting the scope of a new section of the Patent Act related to the admissibility of foreign patent file histories.

A representative for CanMar Foods did not respond to CBC's request for comment.

Flaxseed, which is rich in dietary fibre and essential fatty acids, is used in a variety of foods.