Canada: Claim Construction Is To Be Reviewed On A Correctness Standard, But The Appreciation Of Expert Evidence On Construction Is To Be Reviewed On A Palpable And Overriding Standard (Intellectual Property Weekly Abstracts Bulletin: Week of August 24, 2015)
ABB has appealed two earlier judgments of the Federal Court:
first, ABB's loss on the merits of a patent infringement action
and the declaration that its two patents are invalid (2013 FC 947, first summarized here); second, the award of
$350,000 in costs in favour of Hyundai (2013 FC 1050).
The patents relate to gas-insulated switchgear assemblies used in
electrical power transmission. The inventions were aimed at
improving the safety of workers conducting maintenance on the
circuit breaker. ABB alleged that Hyundai infringed its patents
when it sold gas-insulated switchgear assemblies to B.C.
The main issue on appeal related to the construction of the
claims. The Federal Court of Appeal held that while the standard of
review for construction is correctness, the appellate court will
defer to the lower court's appreciation of the evidence,
particularly expert evidence, which affects construction. Where the
expert evidence affects the construction, the appellant must show
the court committed a palpable and overriding error in preferring
one expert over another.
The key phrase in the first of the patents related to "a
moveable switch contact element". The prior art disclosed
knife blade switches and so if the phrase were construed to include
that type of switch, the claim would be invalid. Although ABB
argued the patent should be construed in a manner that would uphold
the patent, the appellate court found that a purposive construction
should be treated with caution and it does not mean the court must
adopt any arguable interpretation that would uphold the patent. The
finding that the patent included knife blade switches was upheld,
and the patent was found to be invalid.
The second patent was reviewed under the law of construction as
described above, and no error was found in the construction that
resulted in the patent being invalid for obviousness.
The Federal Court of Appeal did not find any palpable and
overriding errors with the assessment of costs and dismissed that
appeal as well.
Other Industry News
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