Transcript continued pages 21 to 30
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1 Q Okay. And they provide them, the results of
2 their work, "them" being the standard certified
3 engineering specifications, to Thermo Tech,
4 correct?
5 A Yes.
6 Q Okay.
7 A In general terms, yes.
8 Q So you don't have to go to your engineer and say,
9 "Remember those standard certified engineering
10 specifications you did two years ago? Would you
11 send a copy to our counsel." You've got all of
12 those things in your offices, correct?
13 A I respectfully beg to differ, since that was
14 rejected as being the material that was to be
15 sent. We took it upon ourselves, as a
16 responsible company, to ensure that everything
17 that was to be delivered would be delivered in --
18 up to the minimum form.
19 Q I'm not sure if I quite understood whether your
20 answer was responsive to my question, but every
21 standard certified engineering specification of
22 any nature regarding thermophilic plants produced
23 by engineers is in the possession of Thermo Tech,
24 is it not?
25 A I believe that's true, yes.
26 Q Okay. So you wouldn't have to go to the
27 engineers to say, "Deliver these up"; you've got
28 them yourself, don't you?
29 A We are talking about something very specific, and
30 in that case, we felt that was the prudent thing
31 to do.
32 Q What was the prudent thing to do?
33 A To have the engineers review according to the
34 court's requirement and deliver that which was
35 specified by the licence.
36 Q Do you have standard certified engineering
37 specifications, including drawings, prepared for
38 you by Dick Engineering?
39 A Not in respect to this particular process
40 described, no.
41 Q All right. Regarding thermophilic plants?
42 A Regarding the Thermo Master TM Mark II plant,
43 yes, sir, we do.
44 Q Is that a thermophilic plant?
45 A It is a Thermo Master TM Mark II plant.
46 Q Is the Thermo Master TM Mark II plant a
47 thermophilic plant?
48 A It is a comprehensive package of technologies
22
1 that we market under that term, in which we
2 conduct a form of thermophilic processing.
3 Q Which means it's a thermophilic plant, isn't it?
4 A If that's what you wish to describe it as, you
5 may do so. We describe it very specifically for
6 very specific reasons, which I also have filed an
7 affidavit to explain.
8 Q And we'll get to your other affidavit in a
9 moment.
10 A Fine. I'm sure.
11 Q Okay. So if I may call a thermophilic plant,
12 you'll understand what I'm referring to?
13 A I will understand what you're referring to.
14 Q Okay. So you've got the Dick Engineering
15 drawings. You have drawings from Stanley
16 Engineering, do you not?
17 A We do.
18 Q You have drawings from other engineers, also, do
19 you not?
20 A Yes. Yes.
21 Q What other engineers?
22 A Stothert.
23 Q What other engineers?
24 A I am not prepared to specifically name them,
25 though I am of the belief that there would be at
26 least two or three other firms that I cannot
27 state, from my own knowledge, that we have other
28 drawings.
29 Q Now, I just want to make sure -- you're not
30 prepared to specifically name them, or you can't
31 specifically name them?
32 A I could name a firm that I believe we have
33 drawings from, but I do not know that we do.
34 Q And which one is that?
35 A Clough Harbor.
36 Q I'm sorry?
37 A Clough Harbor.
38 Q And where are they located?
39 A In the United States.
40 Q Whereabouts in the United States?
41 A This is why I was reluctant to answer, because I
42 am only aware that we have consulted them, and I
43 do not know what we have from them.
44 Q Well, where is Clough Harbor?
45 A That's the name of a company.
46 Q Okay. Sandwell Inc., did you get engineering --
47 standard certified engineering specifications
48 from Sandwell Inc.?
23
1 A I don't know, and I don't understand.
2 Q Why was it, sir, in paragraph 33 that you had to
3 be assured by Ross Lewis that everything had been
4 delivered to the plaintiffs?
5 A We're back to my affidavit?
6 Q Yes, I'm sorry.
7 A Because --
8 Q Paragraph --
9 A Because we had asked them --
10 Q -- 33.
11 A -- to prepare the documents and to do that.
12 Q Well, isn't it placing Mr. Lewis in a bit of an
13 invidious position if he has to warrant what you
14 possess?
15 A In very general terms, sir, that's what an
16 engineering stamp is about.
17 Q If we go to -- a little -- go to your second
18 affidavit.
19 A That, I have.
20 Q Now, let me, if I can, just very briefly try and
21 see if I can understand your second affidavit,
22 Mr. Cumming.
23 Your second affidavit seems to suggest, and
24 correct me if my paraphrasing is right, --
25 MR. BOWES: Or wrong.
26 MR. LUNNY:
27 Q -- "The process that these plaintiffs purchased
28 is not the process that we use in our Thermo
29 Master TM plants, and therefore, we don't have to
30 produce any of these drawings relating to these
31 new plants." Is that right, roughly? The
32 position of the company?
33 A The -- the affidavit is basically to explain the
34 difference of what the licence refers to, what we
35 have now and the contractual relationship that
36 that implies.
37 Q But did I get it right, basically? You're
38 saying, "We don't have to produce any of our new
39 drawings and specifications because they relate
40 to a new process with respect to which Trooper
41 has no right, title or interest"?
42 A That's correct.
43 Q All right. How is it, sir, that this seemingly
44 complete defence emerges in your affidavit of
45 15th May 1998?
46 A How is it that at that date it comes forward?
47 Q Yes.
48 A I think, rather simply, the other aspects of this
24
1 affidavit, which I'm sure you'll be wishing to
2 discuss, that lay out the fact that we have been
3 able to document, through attainment of patent,
4 that regardless of what we may have said at any
5 point in time, that as a result of the patenting,
6 it is now confirmed that this is an entirely
7 different process from that which existed before.
8 Q Okay. I don't think I've got an answer to my
9 question why it is that this comes out on May
10 15th, 1998 and not before.
11 A Because, as I should have said as I was speaking,
12 the -- the patent process reached a stage just
13 before that where we became aware and confident,
14 as per the letter from our patent attorneys, that
15 the patent had been allowed, confirming that
16 which we had believed for a long time, but which
17 was, until the patent was allowed, more a matter
18 of our opinion than someone else's.
19 Q There is no patent on this new process, is there?
20 A Yes, sir, there is.
21 Q No. There's a confirmation of a notice of -- in
22 the U.S. patent office. There's no patent
23 issued, is there?
24 A The patent has been allowed and will be issued in
25 due course.
26 Q It has not been issued, correct?
27 A In the strict technical terms of the process of
28 patenting, it has been applied for, it has been
29 argued back and forth with the patent office, it
30 has been allowed, and it will be issued upon
31 payment of the issuing fee.
32 Q Okay. Are you agreeing with me that it's not yet
33 issued?
34 A It has not been issued, no.
35 Q Good. All right. And that patent was applied
36 for in the U.S. and in Canada at the same time,
37 correct?
38 A Within a couple of days.
39 Q All right. Where are we in Canada?
40 A We are in pending status.
41 Q Okay. So that is not even a notice of allowance
42 in Canada, correct?
43 A There's no notice of allowance, no.
44 Q Okay. Now, your affidavit goes into the old
45 process and new process, but you know something,
46 Mr. Cumming? You don't tell us what the
47 difference is. Why is that?
48 A Because we are still in the process of seeking
25
1 patents, and until this patent -- you're quite
2 correct; it hasn't been issued -- until it's
3 issued, it is still a confidential matter.
4 Q Well, I don't think --
5 A However, --
6 Q I don't think you have to be that coy,
7 Mr. Cumming. Because patent applications in
8 Canada are publicly available. You're aware of
9 that, were you not?
10 A Not until they've been filed at a certain period
11 of time.
12 Q Okay. And this has been filed and that certain
13 period of time it is available. Because I've got
14 one. Right? So you -- there's no reason why you
15 couldn't have included this different patent, the
16 application, in your affidavit material, is
17 there?
18 A The patent that you may have is not the one
19 that's currently on file.
20 Q Well, you say it was filed within a couple of
21 days of the U.S. one. When was that?
22 A The U.S. was filed on the 26th of August 1996.
23 Q And when was the Canadian one filed?
24 A The Canadian file -- was filed on the 23rd of
25 August 1996. And an international patent
26 co-operation treaty filing was made approximately
27 a year later.
28 Q And I thought you'd earlier said that they were
29 the same patents. You filed in Canada and you
30 filed in the U.S.
31 A The patent that has been allowed has been
32 amended, and under the regulations we're allowed
33 to put those amendments into the -- into the
34 other pending applications. So they are not
35 exactly the same.
36 Q Well, they're not exactly the same, but in every
37 patent process, there's a back and forth and a
38 shaving here and a shimmying there, isn't there?
39 You know that.
40 A Not always. I have attained patents without
41 challenge.
42 Q And if they are challenged, you have to make the
43 appropriate --
44 A Yes.
45 Q -- amendments?
46 A Yes, of course.
47 Q All right. Now, this new process didn't
48 originate in August 1996, I think you're saying
26
1 from your affidavit material. It was much
2 earlier?
3 A Yes. Obviously, when you file a patent, you've
4 preceded with work before that.
5 Q Okay. This new process arose, in fact, from your
6 own relationship with Thermo Tech in the
7 Summerland project; isn't that correct?
8 A No. That's not correct.
9 Q Okay. It was certainly a process that was around
10 in 1992, wasn't it?
11 A No, sir.
12 Q Okay. When do you say it originated?
13 Originated.
14 A The origination began with our processing after
15 we commissioned the Corinth plant and continued
16 as we worked with our Hamilton and Brampton
17 plants and became more aware of the potentials
18 within the process.
19 Q What is the difference between this process and
20 the old process?
21 A There are at least five --
22 Q Well, what's the main one?
23 A -- major differences. It's not a matter of the
24 main one. It's a body of information that is
25 judged to be significantly different.
26 Q Okay. Well, let's just take -- let's go perhaps
27 to the core. Are you saying -- this is the
28 company you --
29 A Yes.
30 Q -- that all that Trooper got was the process as
31 claimed in the patents that are referred to in
32 the European licensing agreement?
33 A As described in the patents.
34 Q Okay. You know the difference between claimed
35 and described?
36 A I certainly do, and that's why I used the term
37 described.
38 Q And described is much broader than claimed, is it
39 not?
40 A It's different.
41 Q Okay.
42 A I would not say it's broader.
43 Q All right. Let me suggest to you, and you tell
44 me if I'm wrong, because you're familiar with
45 these patents, in the -- if you take the two
46 patents that are described in the licensing
47 agreement, they refer to a thermophilic digestion
48 process which may or may not have inoculation and
27
1 may or may not have external heat sources,
2 correct?
3 A There --. There are broad references in that
4 way. Those are specifically areas that are
5 different.
6 Q Okay. What's the difference?
7 A Different between now and then?
8 Q Yes. Because there need not be inoculation in
9 the earlier ones and there could be a heat
10 source, right?
11 A The earlier ones refer to heating only in the
12 sense of bringing the original mass to a
13 temperature -- they specifically speak of
14 weather, and they talk of bringing it to a
15 temperature where a sequence of bacterial
16 fermentations can begin. So our new approach is
17 quite different from that. It bypasses that
18 entire process.
19 Q Okay. But --
20 A And that was found to be different.
21 Q -- the second patent doesn't -- the second patent
22 of 1992 doesn't talk about that at all. It
23 simply says external heat may be applied and
24 used, correct?
25 A I don't --. What are you referring to in the
26 second patent? What --
27 Q Well, have you read them?
28 A Yes. Not cover to cover in the last few days,
29 but I don't know what you mean by the second
30 patent.
31 Q Okay.
32 A There are four patents.
33 Q Well, two of them are essentially the --.
34 There's four patents. One is in the U.S./Canada,
35 and the other is U.S./Canada.
36 A Yes. I'm not arguing that, but I don't know
37 which one --
38 Q I understand.
39 A -- you're referring to.
40 Q Okay. Well, I've got a little booklet here, and
41 I want you to have a look at that. This is a
42 brief for cross-examination.
43 A Um-hum.
44 MR. BOWES: Do you have a copy for me?
45 MR. LUNNY: Yes.
46 THE COURT: We'll take the morning break.
47 Mr. Lunny, and it's up to you entirely, but
48 if you wish, Mr. Cumming could look at this
28
1 document over the break.
2 MR. LUNNY: Yes. I'll just refer him to the one I'm
3 going to refer him to, my lord.
4 Q It's tab 11.
5 A Um-hum.
6 THE COURT: Mr. Cumming, I'm sure it's not necessary
7 for me to remind you, but you are under
8 cross-examination, and so the court would much
9 appreciate your not discussing your evidence with
10 any person until your cross-examination has
11 concluded.
12 A Yes, sir. Thank you.
13 THE COURT: Thank you very much.
14
15 (WITNESS STOOD DOWN)
16
17 THE REGISTRAR: Order in chambers. Chambers stands
18 adjourned for 15 minutes.
19
20 (PROCEEDINGS ADJOURNED @ 11:19 a.m.)
21 (PROCEEDINGS RESUMED @ 11:43 a.m.)
22
23 THE REGISTRAR: Order in chambers.
24
25 DANIEL BRIAN CUMMING, Resumed:
26
27 CROSS-EXAMINATION CONTINUED BY MR. LUNNY:
28
29 Q Mr. Cumming, I just want to ask you to go to tab
30 11 of the booklet given to you. And his lordship
31 doesn't have one.
32 MR. LUNNY: I'm afraid I didn't make enough copies.
33 But it's Mr. Lewis's --
34 My lord, I'll have to -- I'll have to --
35 THE COURT: I've got other material here. Is it in
36 the other documents?
37 MR. LUNNY: It's not in --. This one isn't, but I'm
38 going to be very short with the witness.
39 Q If you look at tab 11, which is one of the
40 original patents, --
41 A Yes.
42 Q -- page 4, on the right-hand column, that
43 describes a thermophilic process; is that
44 correct?
45 A It makes -- yes, it makes reference to a
46 thermophilic process.
47 Q Okay. And it indicates in paragraphs 15 through
48 25 that heat -- I'm sorry, 10 to 25 -- that it is
29
1 satisfactory to supply heat to the digester, if
2 necessary, and then further, "furthermore, heat
3 can be added to --"
4 A Yeah.
5 Q "-- the digesting mass"; is that correct?
6 A If I might be specific, it says "heat may be
7 added if ambient conditions are very cold."
8 Q Yes. And then it says, "Furthermore, heat can be
9 added to the digesting mass to maintain the
10 temperature --"
11 A To maintain, yes.
12 Q "-- within the thermophilic temperature range for
13 a required period of time," right?
14 Well, it speaks for itself. I just wanted
15 to --
16 A Yes. Yes.
17 Q -- draw that to your attention.
18 A I just lost --. I had lost the point. But yes,
19 it does say "for a required period of time."
20 Q Okay. And the other patent -- and this is at tab
21 12; it's referring to the Eastern European
22 Licence agreement -- is what's generally referred
23 to as the Coulthard patent; is that correct?
24 A Yes. That's correct.
25 Q Okay. And to distinguish that from the patent at
26 paragraph 11, -- I'm sorry, tab 11 -- that
27 describes a thermophilic process without any
28 external heat being applied, correct?
29 A Both describe the process without external heat.
30 Q No, in tab 11. External heat may be applied,
31 correct?
32 A For a specific purpose.
33 Q External heat may be applied, correct, in tab 11?
34 A I responded yes, for a specific purpose.
35 Q All right. But that's the difference between the
36 description in tab 11 and the description in tab
37 12, because tab 12 specifically excludes any
38 external heat, correct?
39 A The entire patent is a very complex document, and
40 the individual and specific issues within it
41 describe various components of the process, and I
42 do not feel comfortable to take it apart one
43 clause at a time. We did that already in getting
44 our new patents through the patent examination
45 process.
46 Q Well, is one of the -- one of the features the
47 fact that in the Coulthard patent -- and we'll
48 find this out from your new patent, --
30
1 A Yes.
2 Q -- because you describe the Coulthard patent as
3 one where no external heat is applied, correct?
4 A Oh, yes.
5 Q All right. Now we come to your new patent, and
6 look at tab 13, if you would. Is this your new
7 patent as applied for at the Canadian patent
8 office?
9 A It appears to be.
10 Q All right. Now, in paragraph -- on page 4 of
11 that document, and going onto page 5, there are
12 criticisms of the Coulthard patent indicating
13 that it has serious disadvantages, correct?
14 A I'm sorry, where are you?
15 Q Page 4, bottom of the page.
16 A Page 4.
17 Sorry, whose page 4?
18 Q Bottom -- go to the bottom page numbers.
19 A Yes. Okay.
20 Q Page 4.
21 A Okay. Page 4.
22 Q Start at paragraph 5 at --
23 A Yes.
24 Q -- two-thirds of the way up. It then sets out
25 two pages of criticism of the Coulthard process,
26 correct?
27 A It sets out a description of the Coulthard patent
28 process, yes.
29 Q Okay. Indicating the disadvantages of the
30 Coulthard process?
31 A Indicating a differentiation, too.
32 Q Well, I'm just reading from the bottom of the
33 page. It says, "The inventors have found that
34 promoting a succession of microorganisms, as in
35 the Coulthard process, is disadvantageous."
36 Do you agree with that?
37 A That's what it says there.
38 Q All right. And then it describes a new process,
39 and that's at paragraph -- I'm going to take you
40 to page 7, and the last paragraph, "By reason of
41 the improvements of the process of the present
42 invention over previously-known processes, the
43 process of the present invention may be used on a
44 commercial basis to quickly and efficiently
45 convert a wide range of waste matter into a
46 usable end product," et cetera.
47 Do you see that?
48 A I see that, yes. |
