VOL. XVII.] EXCHEQUER COURT REPORTS. ,255 1918' ' Jan. 10. DOMINION CHAIN COMPANY, PLAINTIFF, v, MCKINNON CHAIN COMPANY, DEFENDANT. , Patenta P lace of manufacture—.Assembling of 'parts—Diseia4mer-- New invention. ' A patented article made in the United States in detail, in the sizes required in aecordance with specific orders, the parts merely being joined together in Canada, is not manufactured or constrùcted in Canada within the meaning of the Patent 'Act, R.S.C., 1906,-c. 69, s. 3s. 2. Under the Patent Act a disclaimer by the patentee must be considered as part of the original-specification.. The patent itself, not the form of the patented article manufactured under the patent, must be considered. , , 3. Held, that the plaintiff's patent for grip treads for pneumatic tires had been anticipated and disclosed no new invention. A CTION by plaintiff claiming to be the assignee of a patent No. 90,650; bearing date December -20,1904, and granted to one Harry De Lyne Weed, and to Joseph Sumner Pickell, the assignee of one-half in-. terest by assignment from Weed. Tried before the Honourable Mr. Justice Cassels; at Ottawa, December 4, .1917. R. S. Smart, for plaintiff. W. D. Hogg, K.C., and J. G. Gibson, for defendant. CASSELS, J. (January 10., 1918) delivered judg- r ment. , '
256 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 The plaintiff claims as assignee of the patentees $Â to have it declared that the defendant has infringed Maci t'N toN the said letters patent by the manufacture, use and CRAIN CO. seo for sale of the grip treads for pneumatic tires covered B,e ne Judgment. by the said . letters patent. The defendant denies the infringement and sets up their 3 main defences :—(1) That the plaintiffs, and those through whom they claim, have failed to comply with the provisions of the Patent Act, in that they did not manufacture the invention in Canada according to the requirements of the law. (2) That in violation of the provisions of the Patent Act, the plaintiff, and those through whom it claims, imported from the United States the article covered by the patent, and by reason thereof the patent became void. (3) That Weed was not the inventor of the invention claimed by him in his patent, and that, by reason thereof, the patent is void. There was a further defence that the fees required to be paid for the subsequent term of the patent had not been paid, and that by reason thereof the patent lapsed. This defence was not pressed by Mr. Hogg. ' It appears that the fees were not paid, and thereby the patent would have terminated. By subsequent legislation, what is called the War Measures Act, the commissioner was empowered to accept the fees, notwithstanding the non-payment, and the effect of such acceptance was to place the patentee in the same position as if he had complied with the provisions of the statute. The patent relates to treads for pneumatic tires. The patentee describes his invention as follows : "The object of my present invention is to providè "a flexible and collapsible grip or tread . composed
t ' 1 VOL. XVII.] EXCHEQUER COURT REPORTS. 257 "entirely of chains linked together and applied to 19 • "the sides and periphery of the tire, and held in el°;:„/Na N. "place solely by the inflation of the tire, and which Mc KINNON "is reversible so that either side may be appliéd • to CHAIN CO. • J a forr "the periphery of the tire, thus affording double Judgm ent. "wearing surfaces." He places two opposite parallel chains, called side, chains, which are flexible. Attached to these flexible chains are a series of cross chains which are attach- ed to' the lateral or side chains by hooks. When the tire is inflated, these side chains are held in position. Apparently the patentee had the idea that these side chains to which the cross chains are attached' would . form a continuous chain, and he describes the method of placing the grip tread over the rubber tire. This is by the deflation of the tire, and when deflated the side chains are placed in position and the tire is then inflated again. This method would not be of much practical use, and in the manufac- tured tread, instead of the side chains being in one • continuous piece, they interlock when placed in posi- tion, which obviates the necessity of deflating and inflating the tire. According to all the witnesses who gave evidence. before me, there is considerable benefit from what is styled the creeping motion of this grip tread over .the tire. This creeping motion is provided for in the Parsons patent, to which I will have to refer subsequently. But, curiously enough, the patentee - Weed seems to. have . endeavoured to prevent •the creeping. In his specification he puts it in this way: "These grips or auxiliary treads- are adapted to "be applied to the traction or driving wheels of au-"tomobiles, and one •of the important objects is to "enable anyone, skilled or unskilled, to easily. and
258 EXCHEQUER COURT REPORTS. [VOL. XVII. 191 8 8 "quickly apply the auxiliary tread when needed by DomI I O "partially deflating the tire and then placing the MAR N so~ "grip thereon, and finally, reinflating the tire to CHAIN co. "cause the transverse chains to partially imbed 8easoae for ana~en t. "themselves in the periphery of said tire, whereby "the auxiliary tread or gripping device surface is "firmly held in operative position against circum-ferential slipping of the tire." Further on in the specification he states : "The chains----4—are of slightly less length than "the arc measured on a cross section of the tire be- tween the chains-3—when the tire is inflated, and "it therefore follows that when the tire is inflated, "the chains-4--are imbedded in the periphery of "the tire." He further states that "owing to the fact that the cross chains are imbedded into the tire they are also prevented from slipping relative to the tire." And further on he refers to the fact that the cross chains are held in their position by being partially imbedded in the tire when inflated. All the witnesses describe, as I have stated, the benefit to be derived from the so-called creeping of the tread—and according to Professor Carpenter, notwithstanding Weed's contention, there would be creeping in his device. It seems to me that this probably results from the manner in which the manufacturer constructed the treads. If they were constructed as the patentee described, and were thoroughly imbedded in the tire, it is difficult to see how the creeping action could take place. However, this does not become a question of much importance. I am of opinion, the defence of want of manufacture, and also of importation, has been proved by
VOL. XVII.] EXCHEQUER COURT REPORTS: w 259 the defendant; and that the patent has long 'since1 9 1"8 become. void under the p s ro io vi ns of the Patent Act. n C ° a ~ ei v x C . o. In Fisher & Smart on. Patents'. will be found, thé M[ Îx Cô history : of these provisions. Reasons for Judgment. By e. 24 of 55 & 56 Viet., 1892, it is provided: "(d) That such patent, and all the rights and "privileges thereby 'granted, shall cease . and. doter- "mine, and that the patent shall be null and void at "the end of '2 years from the date thereof, unless the "patentee or his legal representatives or his assig- " nee, within that period or any authorized extension "thereof, commence,, and after such commencement; ``continuously carry on in Canada' the construction, " or manufacture of the invention patented, 'in such' " a manner that any person desiring to use it may "obtain it, or cause it to be made for him at a real "sonable price, 'at some manufactory or '4éstablisli-" ment for making or constructing it in Canada; • " (b ). That if, after the expiration of :Ï2 months "from .the granting of a patent or àny authorized , extension of such period, the patentee or paten- "tees; or any of them, ,or his or their. representa•-4 `tives, or his or their assignee, for the . whole or , as "part of his or , their, interest in the patent, imports, "or causes to be imported into Canada, the invention "for which the patent is granted, such • patent shall "be void as to the interest of the person, or persoins "importing or causing to be imported." As I will point out later, to my mind , it would be almost farcical to hold under the facts established in this case that there was any manufacture in Can- ada, prior , at all events to the year i91.3. .1 (1914) pp. 131-141.
260 EXCHEQUER COURT REPORTS. [VOL. XVII. s 18 William Thomas Morris , a witness called for the DOA I IO plaintiff, states that he was one of the original MCKIN v' N ON CHAIN CO. directors of the Dominion Chain Company when it Reas ons for was first formed in Canada, and has been active in Ju d m g ent. the development of the manufacturing department. That was in 1913. He goes on to point out that the Dominion Chain Company has a factory in Canada where it makes these grips. It is located at Niagara Falls, and has been located there ever since 1913. He describes the method of manufacture of the patented grip. He is asked, as follows : "Q. Can you illustrate the method of making the "chain grip. Just describe it? "A. These side members are for a given size of "tire. "His LORDSHIP—What are those side members? "A. These side members are for a 34: by 4 inch "tire." • At- the trial before me there was a table upon which the so-called manufacture was explained. And the witness Morris is asked: • "Q. What is done with the side members—explain "it?—A. The side members are stretched on this "table—they are of â given size for this 34 x 4 inch "tire. "Q. How many sizes of those do you carry?—A.. "Some 80 odd—that is, 80 odd combinations of side "chains." There are about six different sizes, according to this witness, of cross chains. The cross chain is inserted in the side chain by a hook. • I asked the witness whether what he showed me on the table would be described in the first claim of the patent subsequently disclaimed, and he states—
VOL. XVII.] .'EXCHEQUÈR COURT REPORTS. • 261 "His LonnsmP----What you have just been show- - 1 918 "ing me, that would be described in the first claim, TC N Co. "would it not? A grip for elastic tires comprising McK iH ON " side chains flexible in all directions whereby, they CHAIN co. Reasons for "may be reversed side for side, interlocking mein- S udgment. "bers on the ends of said chain and cross chains "having 'their ends secured to the side 'Chains and "their inner and outer faces similar, whereby either-"face may be placed against the tire. Does not that "what you show correspond to that? "A. It is a description of these' that I have just "got through showing you. "HIS LORDSHIP --Is there any difference? "Mr. Smart—No, it does not specify. The cross "chains are not at right angles, as claim 10 does "for instance." He proceeds to describe what he claims was manufacturing in Canada as follows (to his Own counsel).: "Q. When did the Weed Company begin operations in Canada and where ?—A. In 1906, 'at "Bridgeburg. "Q. How long did the Weed Company continue its • "operations in Canada at Bridge burg?--A. In 1906 " and 1907. . "Q: And where and when did it next carry on its "operations I—A. In 1908, in Sarnia. "Q. How long did you continue operations in Sar-"nia, and after that when and where did you côn-: "tinue 'operations 1—A. In the spring of 1908 and "1909, 1p10, 1911 and 1912, at the United Commun- ity Company's plant at Niagara Falls, Canada." He is asked this question: "Q. Where did the Weed Chain Company get the ' "chains it used from 1906 to 1907 in the, manufac- "titre of chain grips in Canada ?—A. We imported '
262 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 "it from the United States, the side chains with the • Donslxlox CHAIN Co. "cross chain hooks attached." ~. MCKIxAOx CHAIN Co. He states: Reasons for "We had an arrangement with the United Corn-5udgment. "munity Company as manufacturing agent to man-"ufacture the grips for the Canadian market, "during the years 1909, 1910, 1911 and 1912. Their "method of manufacturing was the same that we "followed in 1906, 7 and 8, and continued to-day "in our chain manufacturing department of the Do T "minion Chain Company at Niagara Falls." He is asked: "Q. In what shape did the material come into `your manufacturing establishment in the United "States1—A. The connecting hooks were attached "to the side chains and the cross chain hooks were '" attached to the cross chains." On cross-examination, referring to the chains exhibited on the table, he is asked the following questions: "Q. I am asking you, what is here on the table— 't ` h th e e s s e side chains are complete y—A. They are com-" `plete as they stand. "Q. The side chains you say there are complete "as they stand, these on the tableT—A. Yes. "Q. And the cross chains those that are attached, "and those that are on the table there loose, they " are also complete ; they are cut to the proper length "with the hooks attached Y—A. Manufactured to "the proper lengths in the manufacturing depart- ment. "Q. I do not care where they are manufactured, "what we have on the table as cross chains are com-`plete with the hooks upon themY—A. Yes.
J VOL. XVII.] EXCHEQUER COURT REPORTS. 263 "Q. Now we understand one another; then we 1918 "have here two side chains . complete with the hooks. DOMINION CHAIN Co. "upon themes A. Yes. • V. McKinnon CHAIN Co. "Q. We have a number of cross chains complete Reasons for "with the hooks upon them I-A. Yes. Judgment. "Q. Is there any other part or member required to make the completed grip chain 1—A. No." Further on he is asked: "Q. They were to,be put upon tires, they were not "to be put upon gate posts 1—A. As a completed "chain tire grip. "Q. Nor were they brought in, in 1907, for no "other purpose1---A. For chain tire grips. "Q. And these parts, as we have them here on the "table, were brought in and you put them 'together, u'and completed them, for what purpose 1—A. Com-"pl'eted them for the purpose of the Weed Chain "Tire Grip." Further on he states, as follows : "Q. You yourself, with one assistant from New "York and two or three boys, did the work 1—A. '"Yes. "HIS LORDSHIP—Were these' things sent in from "the United States made to order in lengths and so "A. The side chains with the connecting hooks at-"tached and the cross chains with the hooks at-"tached. "His LORDSHIP—Were they all made in the United : "States to order for particular sizes? "A. The specification, as I have, explained that "question, the specification was received from our "agent, and the goods were ordered from the chain
264 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 " manufacturer, following the same procedure as DommioN CHAIN CO. "we had done in New York." V. . CHKAIN It would appear that the agent in Montreal would cô Reasons for apply for certain numbers of the grip treads for the judgment. particular sizes of the automobiles to be furnished. This specification was forwarded to the United States, and the side chains and the cross chains fully completed would be sent to Bridgeburg, hooked together and sent on. to their Montreal agent. This witness further states : "His LORDSHIP—You sent the specifications of "the tire you wanted and they sent you the side • "chains and the cross chains to suit that specifica-" tion t—A. Yes; the specification would go if we "wanted 1200 pieces over all. "His LORDSHIP—There might be one thing in "bringing in a . marketable commodity from the "United States, say 200 or 300 feet of side chains, "and another thing if you sent a specification for a "particular length of chain to suit a particular "wheel, and then get it in in that shape, is that the `‘ way you got it? "A. I will try to make myself clear. The specifi- cation coming to us, for example, from Montreal "would read his requirement for the year or six "months, that would be probably 50 setts of 34 x 4-"inch or 50 setts of 33 1/ 2 -inch. I would purchase "chain to make 50 pairs of 34 by 4. I would pur- chase from the manufacturer 200 pieces of this "chain required to make 50 pairs to a given length, "then so many hundred pieces of cross chains, "which would be supplied to me with a cross hook "attached and with the connecting hook attached. "His LORDSHIP—Ready to be put on?
VOL. XVII.] EXCHEQUER COURT REPORTS. "Yes. I would then take My schedule sheet, and "decide, for example ~ , that a • 96-foot llen gth would " make so many pairs of 34 by 4 grips." Further on he describes that the side chains with the connecting hook attached were packed in separ- a,Iasment' ate barrels, and the cross chains with the cross hooks attached were packed in separate barrels. Further on he states: "Q. But the portions of the chain you brought in "in 1907, as you have already said, Were made and "ready . to be completed for an automobile wheel "and to be sent forward to your purchaser on com- "mission in Montreal for that purposer---A. On `consignment. "His LORDSHIP--In,regard to these cross or trans- verse chains, they would have to be made to order "of certain dimensions 7 "A. Yes. "Q. There is a hook on each end. They would be "made to order of certain ' dimensions r—A. Yes. "Q. And made to order in order to hook into the "side chains ?—A. Yes., • "Q. Where was that work done r—A. By a chain "manufacturer in the United States at that time. "His LORDSHIP--They would buy a length of that ``brass wire and cut it into the necessary lengths "A. At this particular time in the, United States "the company that actually manufactured this side "chain manufactured, I believe, as near as I know, "the hook; but they did buy these cross chains, and "furnished us at first the completed part, the corn-"pleted grip in itself first, and then afterwards , "furnished us with. this cross, hook secured with the 1 265 1 918 C DO sA M I I N N C IO o N : ' MCKFNNON ,CIIAIN CO. Reasons for ° If
266 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 c c "•••.r,r._. cross chain separate, with the cross chain hook at- N cô "tached, and the side chain with the side chain hook MCR, NNON " attached. " CHAIN CO. Reasons for In regard to this alleged manufacture at Bridge- Judgment. burg, the evidence of Frank T. Patterson ,describes the so-called manufacture. The place of manufacture seems to have been a small harness and barber shop, that the plaintiffs would rent for perhaps two weeks in the year ; and in this place, having received from the United States the complete tread, they • would attach the cross chain to the side chain. The only work apparently performed in Canada towards the so-called manufacture is nipping down the point of the hook after it is inserted in the cross chain, so as to prevent it being detached from the side chain. This is done with a tool which was exhibited in court. Now, it is to be noticed that, curiously enough, the • patentee never contemplated the point of the hook being bent into the cross chain. If the patentee's specifications were to be carried out, once his tread was on the tire and imbedded in the tire, it could not become detached. And in his specification the pa-tentee states as follows : "I also contemplate detaching the cross chains "from one or both of the parallel chains by making "an open link or hook connection, as seen on the "left hand side of Fig. 3, in which case the ends of "the parallel chains might be permanently con-"nected." It seems to me that it would be farcical to treat as a manufacture in Canada what has been done by the plaintiffs or their predecessors. It is, in no sense of the word, a purchase on the American market of
VOL. XVII.) EXCHEQUER COURT REPORTS. material, a common subject of merchandise, and then bringing these things over and ,manufacturing them in Canada to the sizes. required. In the case in point, a specific order pleted treads, comprising the side chains and the cross chains, was ,sent to the United States. They were manufactured to order in the United States for the sizes required, and they arrived in Canada completed treads for' the tires of these particular sizes. All that had to be done was hooking the cross chains into the side chains. If this can be called manufacture, I fail to see what possible benefit, there can be in the statute which aims at preventing; importation and requires manufacture in Canada. In the case of theAmerican Anderson Tire Co.,' Burbidge, J., apparently against his own judgment, went as far as it was possible to strain the law. He evidently thought that he should follow the decisions Tache, and laid a good deal ,of stress upon the fact. that, after these decisions, the law had been re, enacted. The facts in the Dunlop lar to the facts in the case before me; but since the judgment in the Supreme Court in the case of v. Griffin' these decisions of Dr. followed. At p. 47 of the report, Armour, J., quotes, Dr. Tache's decision, and adds these words : "Thus holding contrary to \the express words 6f the condition that it was not necessary that the pa-tentee should, within the period mentioned, commence, and after commencement, continuously carry on, in Canada, the construction or manufacture of the invention patented, and holding, without any 1 Can. Ex. 82. 2 33 Can. S.C.R. 89. 1 267 1 9 18 DH M N ëô MCxIN V N . ON CHAIN co. for the com-, Reams tor Judgment.. Dunlop Tire Co. v. of the late Dr.. case are-not simi- • Power Tache can hardly be
268 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 words in the condition to warrant it, that the con-DOMINION CHAIN CO. ditions would be sufficiently satisfied by the patentee V. MCKINNON granting to any person desiring to use the invention CHAIN Co. patented a license to use it upon applying to him meas aim for Judgment. for it and upon payment of a fair royalty. This decision cannot be supported, nor can it be held to be supported by the decisions in the Court of Appeal for Ontario, and in this court, in Smith v. Goldie,1 for what was said by Patterson, J., in the former court, and by Henry, 'J., in this court, was plainly obiter, for each of them held that the decision of Dr. Tache was final and not subject to appeal." Then there are a number of decisions cited in vol. 2 of the Exchequer Court reports. I take it, however, that since the case of Power v. Griffin, the law is that a statute must be construed as it reads. Reliance was placed by the plaintiffs on the case of Grinnell v. The Queen. 2 This case was one under the Customs Act. It was tried before Gwynne, J., who, apparently, treated the case as if it were being tried under the provisions of the Patent Act, which has been quoted. He uses this language : "It is a preposterous fallacy to say that a patented invention, every minutest particle of which was manufactured and constructed in the United Stated, was manufactured or constructed in Canada. I confess that I am wholly unable to understand how any business man of plain common sense could conscientiously entertain the idea that it was." I could not express my own views in more forcible language than that used by Gwynne, J. This case was reversed by the Supreme Court, but on the 1 9 Can. S.C.R. 46. 2 16 Can. S.C.R. 119 at 123.
VOL. XVII.] EXCHEQUER COURT REPORTS. 269 ground that the question was not one in regard to 1918 the manufacturing clause of the Patent Act,, but, CHAIN CO under the provisions of thé Customs Act. V. MCKINNON CHAIN Co. Ritchie, C. J:, at p. 127, states as follows : . Reasons for Judgment. "It seems to me that the question in this case. is "not. whether the bringing in thé parts composing. "the sprinklers in an unfinished state, and complet-"ing them so as to be:in a state to be. used as auto- matic sprinklers with a view of satisfying the pro- visions of the patent law, as contemplated by the "claimant, is a bona ide compliancé with the condi-"tions of the claimant's letters patent." And then he proceeds to point out the difference. Mr. Justice Strong uses this language, at p. 145: "The case of a watch or a carriage . completed "abroad; then taken . to pieces and imported- in sep-. "arate parts, is wholly different, and the same may "be said of the case where the several parts, with-"out being actually put together previous to um-"portation so as to form one whole, are yet so iden-"tified , with the one specific whole which is to be "formed out of them that they are appropriated to "one particular instrument or machine, and to no "other; in sùch circumstances it may well. be said "that there is an importation of 'a particular ma-"chine in parts, but in the présent case there was "nothing resembling . this." I think that the patent is null and void for the reasons that I have stated. I might rest my decision on these points, but, as at the trial, the whole question was tried as to the validity of the patent outside of the question of non-manufacture and importation, and as counsel
270 EXCHEQUER COURT REPORTS. [VOL. XVII. 19" showed a great deal of research and care, I think it DOMINION CHAIN Co. due to them that I should express my views on the McK NNON validity of the patent, having regard to the prior CHAIN CO. state of the art. 'lessons for Judgment. The patentee, on November 2, 1917, filed in the Patent Office, a disclaimer, whereby he disclaimed claims numbers 1, 2, 3, 5, 6, 8, 11, 13, and 14, forming part of the specification for the.said patent. Under the Patent Act it is provided that where a disclaimer is made, such disclaimer shall thereafter be taken and considerèd as part of the original specification. The result of the disclaimer is that the patentee limits his invention to a strict construction patent, namely, of the side chains and with the cross chains at right angles. This is all that 'is left to him, and this is all that is claimed by the counsel for the plaintiffs. I agree with Hains, one of the expert witnesses for the defendant, that, in the face of the Parsons patent, which was referred to in evidence, namely, United States patent No. 732,299, dated March 24, 1903, the plaintiff's patent limited, in the way in which I have stated, is absolutely anticipated by the patent of Parsons. It has to be borne in mind that in dealing with these patent cases, the judge has to consider the case from the patent itself, and not from the particular form of the patented article manufactured under the patent. For instance, in the exhibit produced before me evidencing the Parsons tread, it was a zig-zag tread, with the cross chains at an angle of about 50 degrees. That, however, is only one method of manufacture, described in the patent itself.
VOL. XVII.] EXCHEQUER COURT REPORTS. 271 4 Now, a careful consideration of the Parsons pa-1 s r s tent would show that it was not limited to any par- D°Mx C ' °x C H A''x o. ticular .angle. It is obvious that the more cross . m NNON CHAIN CO. chains you choose to apply, the less Will be the angle. Reasons for And the sixth claim of this patent is : Judgment. "Anti-slipping or protective means for the peri- pheries of wheels, pulleys or the like, comprising "two rings or annuli at opposite sides of the wheel, . "and an anti-slipping medium consisting of a chain "or chains secured to the rings and extending across "and around the periphery of the wheel." • Now there is no possible doubt that if Parsons were to manufactu , r o e his tread with the cross chain instead of being at right• angles at any angle of 15 degrees he would be within the rights of his patent.. If Professor Carpenter's evidence is accepted, and • there is no difference between a diagonal. cross chain with an angle of 15 . degrees and a cross chain at right angles, what would be Weed's defence in an • action , of infringement by Parsons/ Would it • be possible for him to set up, that he was not an in-fringer because he chose to place his cross chains at right angles? •I think not. It seems to me impossible to hold that any such variation from the Parsons' invention, as placing the cross chains at right angles, is invention. • Taken with the disclaimer, counsel for the plain= tiff admitted that there , is nothing left but this. feature. . I think' there is no invention whatever on-the part of Weed in merely taking what was completely disclosed in the art and endeavouring to sustain a pa- tent for a construction patent by this' slight variation. I do not think myself that Parsons was limited
272 EXCHEQUER COURT REPORTS. [VOL. XVII. 1918 to a diagonal cross-bar, but if he were he would be DOMINION CHAIN CO. within his rights to have it anywhere even at a less MCKINNON angle than 15 degrees; and to say there was any CHAIN Co. i n vention i n placing it at right angles and thereby Reasrnsfor Judgment. entitling the patentee to a patent, is almost an ab- surdity, and I cannot see under the facts of this case there can be any intervention. Judgment will go declaring the patent void, and the defendants are entitled to their costs of the action. Judgment for defendant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.