The appellants infringed a patent held by Congoleum, who had granted a non-exclusive licence to the respondent Domco.
The appellants settled with Congoleum but not with Domco.
The Supreme Court of Canada held that a non-exclusive licensee is a 'person claiming under' the patentee within the meaning of s. 57(1) of the Patent Act.
Therefore, the licensee has a statutory right of action for damages sustained by reason of the infringement, which the patentee cannot extinguish by settling with the infringer.
