Paper D

Question 1

(2020) Can statements made during the prosecution of a patent application impact the defence of a Defendant in a patent infringement action? Briefly explain your answer and cite statutory authority.

Answer 1

Section 53.1 of the Patent Act (0.5 marks) provides that any written communication between an applicant (or patentee) and the Commissioner, an office or employee of the Patent Office or a member of a re-examination board relating to the prosecution of a patent application (0.5 marks) may be admitted into evidence in a patent proceeding in order to rebut any representation made by the patentee relating to claims construction (0.5 marks).

Question 2

(2020) Are there any circumstances where prosecution history in foreign jurisdictions may impact the defence of a Defendant in a patent infringement action? Briefly explain your answer and cite case law authority.

Answer 2

Yes, these extraordinary circumstances arise where, during patent prosecution:
1 - the patentee acknowledges it has amended the claims in a substantially similar manner as its claims submitted in another jurisdiction (0.5 marks); and
2 - the patentee admits the amendments have limited the scope of the claims to make them novel and non-obvious (0.5 marks).
In these extraordinary circumstances, the prosecution history of a foreign application can be made part of the prosecution history of the Canadian patent (Canmar Foods Ltd v TA foods Ltd, 2019 FC 1233) (0.5 marks).

Question 3

(2020) Name the relevant court case that has to do with prosecution history from foreign jurisdiction.

Answer 3

Canmar Foods Ltd v TA foods Ltd, 2019 FC 1233

Question 4

(2020) Under Canadian law, a plaintiff claiming contributory infringement must prove three elements. Cite case law authority.

Answer 4

The elements are:
1 - that there is direct infringement by another party (0.5 marks);
2 - that the defendant knew infringement would take place (0.5 marks); and
3 - that the defendant encouraged the infringing conduct (0.5 marks).
- MacLennan v. Produits Gilbert Inc., 2008 FCA 35

Question 5

(2020) A maintenance fee for an issued patent was due on November 1, 2019, and was not paid. A notice was issued from CIPO on April 1, 2020, setting a two month deadline of June 1, 2020 as the due date to pay the fee along with a late fee. None of these dates fall on a day on which CIPO is closed for business.
- What is the potential consequence of waiting until June 1, 2020 to pay the fee?
- When should the fee be paid to avoid this potential consequence?
- Cite the relevant section of the Patent Act (Rules not necessary).

Answer 5

• The consequence is that the third party rights exception to infringement begins (0.5 marks)
• on May 1, 2020 (0.5 marks), 6 months after the original maintenance fee due date (Patent Act, s. 55.11 [Patent Rules s. 128 but cite to Patent Rules not required for
  mark]) (0.5 marks).
• The fee should be paid by May 1, 2020 to avoid this. (0.5 marks)

Question 6

(2020) A new invention disclosure has come across your desk from a researcher at a well-known Canadian university. The researcher has indicated that she is using a patented antibody to try to develop a new version of the antibody with improved properties. Because the antibody is very expensive to purchase, the researcher has taken the information available in the patent and made the antibody herself in the lab.
1 - Is the researcher liable for patent infringement?
2 - Briefly state why or why not.
3 - Cite statutory authority. (2 Marks)

Answer 6

• This is not likely an infringement (0.5 marks)
  – Patent Act, s. 55.3 (1) (0.5 marks): An act committed for the purpose of experimentation relating to the subject-matter of a patent is not an infringement of the patent (0.5 marks), and testing to develop an improved antibody arguably relates to the subject matter of the patent (0.5 marks).

Question 7

(2020) A patent application was filed in Canada on December 1, 2019, claiming priority to an application with a filing date of November 1, 2018, a period of more than one year. On November 2, 2018, the subject matter of the patent application was entirely disclosed and enabled in a press release by the Applicant. In an infringement suit brought after the patent issued, it was argued that there can be no infringement because the patent is
entirely anticipated by the November 2, 2018 disclosure. Briefly state how this argument could fail, assuming that the subject matter of the Canadian patent application is fully supported by the priority filing. Cite statutory authority.

Answer 7

This argument would fail if:
- priority was successfully restored (0.5 marks) pursuant to sub- section 28.4(6) of the Patent Act (0.5 marks) [accept cite to R. 77]. This section allows restoration of priority where the Canadian application was filed within two months of the twelve month priority deadline (0.5 marks), and here the December 1, 2019 filing date is one month after the twelve month priority deadline (0.5 marks). In such circumstances, sections 28.2(1) and 28.3 (0.5 marks) provide that where the claim date (here November 1, 2018) (0.5 marks) precedes the one-year period before the filing date (here December 1, 2018) (0.5 marks), the grace period for disclosures by the applicant is applicable (0.5 marks).

Question 8

(2020) Company A sells patented bicycle wheels. Company B has designed a new and improved bicycle that incorporates Company A’s wheels. Can Company B buy Company A’s patented wheels and sell bicycles using the wheels without infringing Company A’s patent? Briefly explain your answer and cite case law authority. (2 marks)

Answer 8

• Yes Company B can sell the bicycles (0.5 marks).
• The wheels were purchased from Company A (0.5 marks), which gives an implied license to use the patented article (0.5 marks) (patent exhaustion)
• Eli Lilly and Co v Novopharm Ltd, 2 [1998] 2 SCR 129 or other suitable authority (0.5 marks).

Question 9

(2020) Joe Beef Packing Inc. (“Joe Beef”), a meat packing and processing company with facilities in Montreal, Quebec, is the owner of a patent in Canada covering one of its proprietary methods that is the subject of Canadian Patent No. 2,xxx,741 (the ‘741 Patent). The ‘741 Patent was filed on September 23, 1997 and issued on March 3, 2007. Claim 1 of ‘741 Patent reads as follows:

A method for preparing a raw base material for use in a processed meat product, the method comprising:
(1) at a meat packing plant, deboning whole muscle meat to thereby create boneless whole muscle meat;
(2) mixing an initial processing mixture with the boneless whole muscle meat at the meat packing plant and packing the resultant mixture into a container;
(3) shipping the container to a meat processing plant such that the boneless whole muscle meat is partially processed for at least two hours during said shipping; and
(4) further processing the meat at the meat processing plant by at least one of smoking, salting, pickling or grounding.

Bestia Inc. (“Bestia”), a competitor to Joe Beef, with facilities in Toronto, Ontario and Buffalo, New York. Joe Beef just discovered that Bestia has been using Joe Beef’s claimed process since 2010. Bestia conducts all of the initial meat packing steps at its meat packing plant in Toronto and ships the container containing the initial processing mixture and the boneless whole muscle meat to its meat processing plant in Buffalo, New York, where the remaining processing steps take place.

A. Assuming Bestia is selling meat only in the US market, briefly state whether Joe Beef can bring an action against Bestia for patent infringement in Canada. Cite case law authority?

B. How would your answer to A change if Bestia exports the processed meet from its Buffalo processing plant back to Canada for sale? Cite case law authority.

C. Joe Beef commences an infringement action against Bestia today, May 1, 2020. State the period for which Joe Beef can obtain damages for patent infringement. Cite statutory authority.

Answer 9

A. Yes, Joe Beef can bring an action in Canada (0.5 marks). While some steps of the method claim at issue are carried out outside of Canada (0.5 marks), specifically part of the shipping step (3) and the processing step (4) (0.5 marks), Canadian law is not clear as to whether or not this is an infringement [or such a claim was not struck as disclosing no cause of action, or equivalent commentary] (0.5 marks) (Canadian National Railway Company v. BNSF Railway Company, 2018 FC 614) (0.5 marks).

B. If the meat is exported to Canada for sale, there would clearly be infringement (0.5 marks), since importation of a product made by a patented process even fully conducted abroad infringes a Canadian patent (0.5 marks) Saccharin Corporation Ltd. v. Anglo- Continental Chemical Works, [1901] 1 Ch. 414 (Eng. Ch. D.) or any suitable decision confirming its adoption in Canada, e.g. Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34 (0.5 marks)

C. Joe Beef can obtain damages starting from May 1, 2014 [or accept six years before the action is commenced] (0.5 marks), because of the limitation period provided by s. 55.01 of the Patent Act (0.5 marks). Joe Beef can obtain damages until September 23, 2017 [or accept twenty years after filing date] (0.5 marks), which is the date the ‘741 Patent expires pursuant to section 44 of the Patent Act (0.5 marks).

Question 10

(2019) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

A claim of a Canadian Patent that was granted in 2018 can have more than 22 years of term.

Answer 10

False – For patents granted in 2018, the maximum term for a claim in a patent can be 22 years (20 years + 2
years of certificate of supplemental protection).

Question 11

(2019) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

A potential infringer who has privately used an invention can use the Gillette defense to avoid liability for infringement

Answer 11

False – Gillette defense only applies to prior public uses.

Question 12

(2019) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

A non-infringing alternative does not need to be economically viable.

Answer 12

False – Apotex v. Lilly 2018 FC 217 or
- Apotex v. Merck 2015 FCA 171

Question 13

(2019) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

Obtaining a Canadian Patent to an improvement over a third party patented technology excludes liability from infringing the third party’s patent.

Answer 13

False – Obtaining a patent for an improvement does not negate the right of the third party to enforce its
patent (Section 32 or 42 of the Patent Act).

Question 14

(2019) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

A patent including claims to an illegal process (for example for making an illegal recreational drug) cannot be enforced against a potential infringer.

Answer 14

False – the fact that the subject matter of the claims is illegal is irrelevant to enforceability.

Question 15

(2020) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

Recycling the main parts of a system excludes liability from infringing a patent on the system.

Answer 15

False – depending on the fact, recycling can be interpreted as remanufacture which would be considered an infringing act or
Rucker Co v Gavel’s Vulcanizing Ltd (1985), 7 CPR (3d) 294.

Question 16

(2020) True or False. Specify whether each of the following is true or false. For a statement to be true, it must be unambiguously true in its entirety. Each answer must be provided with an explanation or a legal citation. If no explanation or legal citation is provided or if the explanation or legal citation is not accurate, no marks will be awarded for the particular question.

An accused infringer must show that he/she does not practice the subject matter defined by the claims of a patent to avoid infringement.

Answer 16

False – The Patentee has the burden of proving infringement.

Question 17

(2019) Your client has obtained Canadian Patent ‘432 on an electronic ticketing system. Canadian Patent ‘432 was filed on February 13, 1997, published on August 13, 1999 and granted on May 5, 2010.

On September 3, 2018, your client sued the organizers of a BBQ competition for infringement of the ‘432 Patent. The competition was held in Medicine Hat in June 2008, 2010, 2012, 2014, 2016 and 2018. During discovery, it was determined that the organizers netted a profit of $100 000 by using the patented ticketing system each year the competition was held. On February 13, 2019, the Court concluded that the ‘432 Patent was infringed by the organizers of the BBQ competition.

1) For the competition held in 2008, indicate two reasons why the net profits cannot be the subject of an award granted under the Court order. Provide the basis for each of the reasons put forward.

2) For each of the competitions held in June 2010, 2012, 2014, 2016 and 2018, indicate if the net profits made during these specific years would be the subject of the award granted under the Court order. Explain each of your answers, no marks will be granted without explanation or if the explanation is not accurate.

3) Indicate one (1) additional remedy that could apply to the competition held in 2018. Provide the circumstances under which this remedy could be sought. Support your answer by citing a relevant legal authority.

4) A divisional patent application of the ‘432 patent was filed on July 4, 1999 and granted on March 24, 2016. The claims filed in the divisional patent application were granted without amendment. Assuming that the divisional patent application was also ordered to having been infringed, (1) indicate the period at which reasonable compensation can be awarded, (2) the legal authority for same, (3) the condition(s) which needs to be met for an award of reasonable compensation, and (4) explain reasonable compensation could be obtained for the divisional patent application.

Answer 17

1) - Accounting of profits (on the net profits of the infringer) only apply for periods occurring after the grant of the patent.
- The 2008 competition falls outside the 6-year limitation period.

2) Year - Subject to an award?- Reasoning
2010 - No - Outside the limitation period
2012 - No - Outside the limitation period
2014 - Yes - Inside the limitation period, patent is in force 2016 - Yes - Inside the limitation period, patent is in force
2018 - No - Patent expired

3) Post-expiry springboard damages.
The patentee would have to show that the infringing activity provided the infringer with a springboard into the
market, giving it an advantage that resulted in benefitting from the infringement after expiry of the patent
- Dow Chemicals vs. Nova chemicals 2017 FC 350

4)
(1) September 3, 2012 to March 23, 2016

(2) Section 55(2) of the Patent Act

(3) The granted claims must have a substantively similar scope to those at publication

(4) Yes because the claims that were published were the same as those that were granted.

Question 18

(2019) The Great Canadian Toy Co. is manufacturing toy figurines having deployable parachutes for sale in Europe only. The figurines are dropped from a height (such as off a balcony), and the parachute deploys once a freefall of 200 cm is detected. The deployable parachutes are readily replaceable and are sold as separate parts as they tend to last only 3-4 drops.

The figurines are manufactured in Canada by The Great Canadian Toy Co. just outside Halifax, Nova Scotia. The parachutes are manufactured exclusively in China by ParaToys Co. based directly on a design provided by The Great Canadian Toy Co. Ten percent (10%) of the parachutes manufactured in China are imported into Canada to be packaged with the figurines prior to shipping. The remaining 90% are sold directly to toy stores in Europe to be sold as replacement parachutes. Both the replacement parachutes and the figurines themselves include instructions for installing replacement parachutes.

Trolls Inc. own Canadian Patent Number ‘747 on toys with deployable parachutes. Canadian Patent No. ‘747 is infringed by the fully assembled toy sold by The Great Canadian Toy Co., but makes no mention of replaceable parachutes.

1) Is The Great Canadian Toy Co. liable for patent infringement in Canada of Canadian Patent No. ‘747 for its sale of the figurines to Europe? Explain your answer and support your conclusion with a legal authority.

2) Is ParaToys Co. liable for patent infringement in Canada for the 10% of parachutes sold to Great Canadian Toy Co? Explain your answer and support your conclusion with a legal authority.

3) When a European user purchases replacement parachutes in Europe to replace a damaged parachute, are any parties liable in Canada for infringement of Canadian Patent No. ‘747? Explain your answer.

4) The director of research and development of The Great Canadian Toy Co. decides to take a couple of figurines at home in Cape Breton to test the new of parachutes received from ParaToys Co. He does assemble the toy during the week-end and replaces the broken parachutes several times with new ones. Would the director be found liable in Canada for infringement of Canadian Patent No. ‘747? Explain your answer and support your conclusion with a legal authority.

Answer 18

1) Liable for manufacture and on export to Europe, since it is assembling the figurine with the parachute in Canada (Section 42 of the Patent Act).

2) Not liable. ParaToys Co. are manufacturing parachutes for The Great Canadian Toy Co. to import into Canada. There is no infringement until the parachutes are assembled on the toys. (Windsurfing International Inc. v. Trilantic Corp. (1985), 8 C.P.R. (3d)).

3) Repair done by the user does not result in infringement of a Canadian Patent.

4) Yes, remanufacture does result in infringement of a Canadian Patent (Rucker Co v. Gavel’s Vulcanizing Ltd (1985), 7 CPR (3d) 294.

Question 19

(2021) State whether the following is true or false. Cite statutory authority.

A Canadian patent issued from a patent application filed on or after October 1, 1989 can have a term of protection that is more than 20 years.

Answer 19

True. A Certificate of Supplementary Protection can extend the term of protection, section 106 of the Patent Act or other provision relating to CSP grant.

Question 20

(2021) State whether the following is true or false. Cite statutory authority.

The Commissioner of Patents can authorize a third-party to use an invention covered by a claim of a Canadian Patent without being liable for patent infringement.

Answer 20

True. The Commissioner can authorize use of a patented invention by government, section 19 of the Patent Act OR The Commissioner can authorized use of a patented invention for international humanitarian purposes to address public health problems, section 21.01 of the Patent Act

Question 21

(2021) State whether the following is true or false. Cite statutory authority.

In an infringement action, the patentee always has the burden of proving that a claim of the patent is infringed.

Answer 21

False. In the case of a patented process, the burden of proof shifts to the defendant, section 55.1 of the Patent Act.

Question 22

(2021) Company A holds Canadian Patent No. 3,xxx,789 with claims covering a waffle maker. The waffle maker includes a pair of special non-stick hot plates for making waffles while ensuring the dough does not stick. The ‘789 Patent does not include any claims covering just the hot plates as a component separate from the waffle maker. The hot plates are designed to be replaceable by the consumer and Company A sells replacement hot plates as a separate part, because the hot plates are known to lose their non-stick properties over time.

Answer the following question, providing a brief statement explaining your answer and including a citation to case law authority.

Is Company B whose business is to replace the hot plates for customers liable for patent infringement?

Answer 22

Company B is not liable for infringement. Merely offering to repair a patented article does not amount to infringement. Rucker Co. v. Gavel’s Vulcanizing Ltd. (1986), 7 C.P.R. (3d), 6 C.I.P.R. 137 (F.C.T.D.)

Question 23

(2021) Company A holds Canadian Patent No. 3,xxx,789 with claims covering a waffle maker. The waffle maker includes a pair of special non-stick hot plates for making waffles while ensuring the dough does not stick. The ‘789 Patent does not include any claims covering just the hot plates as a component separate from the waffle maker. The hot plates are designed to be replaceable by the consumer and Company A sells replacement hot plates as a separate part, because the hot plates are known to lose their non-stick properties over time.

Answer the following question, providing a brief statement explaining your answer and including a citation to case law authority.

Is Company C who manufactures and sells replicas of the hot plates liable for patent infringement?

Answer 23

Company C is not liable for infringement, since the sale of non- infringing parts for use in an infringing machine does not, in itself, amount to infringement, Beloit Canada Ltd. v. Valmet Oy (1995), 61 C.P.R. (3d).

Question 24

(2021) Company A holds Canadian Patent No. 3,xxx,789 with claims covering a waffle maker. The waffle maker includes a pair of special non-stick hot plates for making waffles while ensuring the dough does not stick. The ‘789 Patent does not include any claims covering just the hot plates as a component separate from the waffle maker. The hot plates are designed to be replaceable by the consumer and Company A sells replacement hot plates as a separate part, because the hot plates are known to lose their non-stick properties over time.

Answer the following question, providing a brief statement explaining your answer and including a citation to case law authority.

Is Company C, which manufactures and sells replicas of the hot plates liable for patent infringement, if Company C, in its dealing with customers, also provides its customers with a brochure illustrating how to assemble the hot plates into the waffle maker?

Answer 24

Yes, since providing instructions to assemble the patented article using the unpatented hot plates could result in liability for inducing infringement, MacLennan et al. v. Produits Gilbert Inc., 2008 FCA 35.

Question 25

(2021) If a patentee is successful in an infringement suit, the patentee can elect a remedy in the form of either damages or an account of profits. Briefly explain what “damages” compensates for and what “an account of profits” compensates for. List one circumstance under which you might elect damages or list one circumstance under which you might you elect an account of profits.

Answer 25

Damages are intended to compensate the patentee for the loss they suffered by the infringement (e.g., lost sales or royalties)

An account of profits is intended to avoid the unjust enrichment of the infringer (recovers the profit they earned through infringement).

Any reasonable answer can suffice for why you might choose one option over the other; for why an award of damages would be sought OR for why an accounting of profits would be sought. E.g.
• You may choose an account of profits when damages can be difficult to quantify.
• An account of profits may be chosen to cover extra-territorial sales of a product manufactured in Canada.
• An account of profits may be elected by a non-practising entity which would not have sustained any loss of sales.
• Damages may be chosen if the patentee can clearly show that their sales were adversely impacted by the infringer.
• Damages may be preferred where the sales volume of the infringer was low.
• Damages may be elected where the patentee may have ‘unclean hands ’that affects entitlement to the equitable remedy of account of profits.

Question 26

(2021) George, a resident of the United States, installed an aftermarket gas monitoring and regulating device that is supposed to provide an energy economy. The device is subject to a Canadian patent but is not patented in the United-States. George visits the Eastern township every year and this year crosses the Canadian border with the new device installed in his car.

Is George liable for patent infringement for these actions (cite statutory authority)? Can George sell his vehicle in Canada? Briefly state why or why not.

Answer 26

No, George is not liable for patent infringement, his vehicle is a land vehicle entering Canada temporarily and the invention is used exclusively for his vehicle, section 23 of the Patent Act. George cannot sell his vehicle in Canada, as then the vehicle would no longer be temporarily in Canada.

Question 27

(2021) Company A built a single “Superbike”, which contained an innovative new bicycle drive train, on September 1, 2010. Subsequently, and independent from Company A and prior to any public use or sale of the Superbike by Company A, Company B filed a patent application without a priority claim on December 1, 2010 that subsequently issued as Canadian Patent No. 2,xxx,382 on January 1, 2021, with claims covering the innovative new bicycle drive train. Answer the following question, citing statutory authority.

Can Company A continue to use the Superbike given the issuance of the ‘382 Patent?

Answer 27

Yes, Company A can continue to use the Superbike, because it manufactured the Superbike [i.e. committed the infringing act] prior to the claim date [i.e. December 1, 2010] of the ‘382 Patent, section 56(1) of the Patent Act.

Question 28

(2021) Company A built a single “Superbike”, which contained an innovative new bicycle drive train, on September 1, 2010. Subsequently, and independent from Company A and prior to any public use or sale of the Superbike by Company A, Company B filed a patent application without a priority claim on December 1, 2010 that subsequently issued as Canadian Patent No. 2,xxx,382 on January 1, 2021, with claims covering the innovative new bicycle drive train. Answer the following question, citing statutory authority.

Company A is bought by one of its competitors, Company C. Can Company C continue using the Superbike without infringing the ‘382 Patent?

Answer 28

Yes, Company C can continue using the Superbike, because it acquired the business of Company A, and a transferee of a business or a part of a business may acquire the prior user rights of the transferor, section 56(2) of the Patent Act.

Question 29

(2021) Company A built a single “Superbike”, which contained an innovative new bicycle drive train, on September 1, 2010. Subsequently, and independent from Company A and prior to any public use or sale of the Superbike by Company A, Company B filed a patent application without a priority claim on December 1, 2010 that subsequently issued as Canadian Patent No. 2,xxx,382 on January 1, 2021, with claims covering the innovative new bicycle drive train. Answer the following question, citing statutory authority.

Company A sells the Superbike to Company D. Can Company D re-sell the Superbike without infringing the ‘382 Patent?

Answer 29

Yes, Company D can re-sell the Superbike, because it purchased the Superbike from Company A, and the prior user rights of the vendor follow the sold apparatus, section 56(3) of the Patent Act.

Question 30

(2021) Company E has a patent application 3,xxx,288 covering a method of producing a chemical compound. However, the ‘288 application becomes abandoned for failure to pay the maintenance fee but within three months, Company E proceeds to reinstate the ‘288 application by filing the applicable request and paying the reinstatement fee and the maintenance fee.

During its IP monitoring, Company F notices the abandonment of the ‘288 application and in good faith believing the application has been abandoned, starts using the method to produce the same compound during the three-month period of abandonment.

Can company F continue using the patented method once the patent application is reinstated and eventually issued? Cite statutory authority.

Answer 30

Yes, Company F can continue using the patented method, section 55.11(3) of the Patent Act. Since Company F in good faith committed an act that would be an infringement of the ‘288 patent, it is not thereafter an infringement for Company F to do that act.