Eurocopter v. Bell Helicopter Textron Canada Ltd. et al., (2013) 449 N.R. 111 (FCA)

• Judge: Noël, Trudel and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 24, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 449 N.R. 111 (FCA);2013 FCA 219

Eurocopter v. Bell Helicopter Textron (2013), 449 N.R. 111 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. SE.018

Bell Helicopter Textron Canada Limitée (appellant) v. Eurocopter, société par actions simplifiée (respondent)

(A-74-12; 2013 FCA 219; 2013 CAF 219)

Indexed As: Eurocopter v. Bell Helicopter Textron Canada Ltd. et al.

Federal Court of Appeal

Noël, Trudel and Mainville, JJ.A.

September 24, 2013.

Summary:

Both Eurocopter and Bell Helicopter Textron Canada Ltd. were major manufacturers of helicopters. Eurocopter developed a landing gear that formed the basis of Eurocopter's Canadian Patent No. 2,207,787 (the '787 patent). Eurocopter alleged that Bell Helicopter had infringed the '787 patent by two models of landing gear: the Legacy gear and the Production gear. Besides seeking a declaration of infringement and a permanent injunction, Eurocopter requested that Bell Helicopter be ordered to remit or destroy any infringing gear, that it be permitted to elect between payment of its damages or an accounting of profits, and further sought punitive damages. Bell Helicopter denied the infringement and, in counterclaim, alleged that claims 1 to 16 of the patent were invalid on various grounds.

The Federal Court, in a decision reported at (2012), 404 F.T.R. 193, declared that Bell Helicopter had infringed claim 15 of the '787 patent by using the Legacy landing gear; declared that Bell Helicopter had not infringed claim 15 by using the Production landing gear; enjoined Bell Helicopter from manufacturing, using or selling the Legacy landing gear until the '787 patent expired or was otherwise held to be invalid; declared that Eurocopter was entitled to damages, including punitive damages, the quantum to be determined in subsequent hearings; and invalidated the other claims of the '787 patent. Bell Helicopter appealed on the grounds that claim 15 was invalid; that its Legacy landing gear did not infringe the '787 patent; and that the finding of punitive damages was inappropriate. Eurocopter cross-appealed on the grounds that all the claims of the '787 patent were valid, and that the Production landing gear infringed those claims.

The Federal Court of Appeal dismissed both the appeal and the cross-appeal.

Damages - Topic 1318

Exemplary or punitive damages - Patent infringement - In this patent case, the appellant submitted that the judge erred in law by granting punitive damages - The Federal Court of Appeal discussed the "stringent conditions" for an award of punitive damages, including under the civil law applicable in Quebec, "notably in cases of intentional infringement of intellectual property rights ... The reasoning set out in these cases with respect to copyright logically extends to patents" - See paragraphs 163 to 167.

Damages - Topic 1318

Exemplary or punitive damages - Patent infringement - Prior to the trial, the parties had agreed to bifurcate the issue of the calculation of the quantum of compensatory damages and of punitive damages that might eventually result from the infringement by Bell Helicopter of Eurocopter's patent - The judge declared that Bell Helicopter had infringed claim 15, and that Eurocopter was entitled to punitive damages, leaving the quantum to be determined in a subsequent hearing with the quantum of compensatory damages - On appeal, Bell Helicopter submitted that the judge erred in law by granting punitive damages before assessing the quantum of general damages - The Federal Court of Appeal rejected the submission - The issue of any entitlement to such awards was not bifurcated - The court agreed with the general proposition that the entitlement and quantum of punitive damages should, as a general rule, be determined after the quantum of compensatory damages had been established - "However, this general proposition must be understood and applied with regard to the actual situation before the court and in a manner which facilitates the just and expedient resolution of the litigation in which the issue is raised" - The judge found that the compensatory damages would likely not be enough to accomplish the objectives of retribution, deterrence and denunciation - In light of those findings, it was open to the judge to determine the entitlement to punitive damages as he did - As a logical consequence of Bell Helicopter's submissions, there would be three distinct phases to the punitive damages issue - "This is a nightmarish approach which, if accepted, would place the administration of justice in disrepute" - Finally, the court contrasted this case with its decision in Apotex Inc. v. Merck & Co. et al. (2003) - See paragraphs 168 to 179.

Damages - Topic 1318

Exemplary or punitive damages - Patent infringement - The appellant submitted that, as a matter of principle, punitive damages should not be awarded against a party that intentionally infringed a patent since "policy principles favour the removal of improper monopolies through the challenge of an invalid patent" - The Federal Court of Appeal held that the submission was a misconception of the law - The attempt to limit punitive damages to certain categories of claims was rejected by the Supreme Court of Canada in Vorvis v. Insurance Corporation of British Columbia (1989) - Punitive damages had been specifically found to be available in patent cases - "The submission that patent infringers should be immunized from punitive damages for public policy reasons consequently has no legal foundation. However, not all patent infringement cases, even in voluntary infringement circumstances, will necessarily attract punitive damages. ... Such damages should only be awarded where the evidence shows that there has been high-handed, malicious, arbitrary or highly reprehensible conduct that departs to a marked degree from the ordinary standards of decent behaviour. This is a high threshold which considerably limits the circumstances in which punitive damages may be awarded. However, where such circumstances have been established in the context of a patent infringement case, there is no policy or other reason for a court not to award punitive damages." - See paragraphs 180 to 184.

Damages - Topic 1318

Exemplary or punitive damages - Patent infringement - Both Eurocopter and Bell Helicopter Textron Canada Ltd. were major manufacturers of helicopters - Eurocopter developed a landing gear (the "Moustache") that formed the basis of its Canadian Patent (the '787 patent) - Eurocopter alleged that Bell Helicopter had infringed the '787 patent by the Legacy landing gear and the Production landing gear, and sought, inter alia, punitive damages - Bell Helicopter denied the infringement and, in counterclaim, alleged that claims 1 to 16 of the patent were invalid - The judge declared that Bell Helicopter had infringed claim 15 of the '787 patent by using the Legacy landing gear, and granted punitive damages - The judge found that Bell Helicopter knew that the Legacy landing gear closely resembled the Moustache landing gear, and that its conduct "represented a marked departure from ordinary standards of decent behaviour" - He concluded "that there is clear evidence of bad faith and egregious conduct on the part of Bell", "willful blindness or intentional and planned misappropriation of the claimed invention" and "that the infringement of the '787 Patent by the making and use of the Legacy gear was not innocent or accidental." - On appeal, Bell Helicopter submitted that punitive damages were not appropriate - The Federal Court of Appeal disagreed - "Bell Helicopter has failed to convince me that the Judge erred in his credibility findings, particularly when considering the testimony of other witnesses and the evidence considered as a whole. ... Where a person infringes a patent which it knows to be valid, appropriates the invention as its own, and markets it as its own knowing this to be untrue, punitive damages may be awarded when an accounting for profits or compensatory damages would be inadequate to achieve the objectives of retribution, deterrence and denunciation of such conduct. Indeed, such conduct departs to a marked degree from ordinary standards of decent behaviour. It must be denounced in a manner that deters similar misconduct in the future and marks the community's collective condemnation." - See paragraphs 185 to 193.

Patents of Invention - Topic 1030.1

The specification and claims - Construction of a patent - "Person skilled in the art" - Common general knowledge - Both parties (Eurocopter and Bell Helicopter) were major manufacturers of helicopters - Eurocopter alleged that Bell Helicopter had infringed its Canadian Patent (the '787 Patent), which related to a skid-type landing gear for helicopters - The judge found that the field of common general knowledge from which the skilled person would draw upon was that of a "conventional landing gear", which he defined as a skid-type landing gear of orthogonal design - In defining the scope of the common general knowledge, the judge preferred Eurocopter's expert's conclusions - On appeal, Bell Helicopter submitted that the judge erred in construing the common general knowledge - The Federal Court of Appeal rejected the submission - Bell Helicopter was, in essence, asking the court to reassess the expert evidence so as to substitute the judge's findings by the court's own findings - "However, appellate courts do not 'retry' or 'rehear' cases" - The judge was entitled to rely on one expert over another in defining the common general knowledge - "An appellate court is only permitted to interfere with factual findings of a trial judge where it is shown that he committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence ... . Where, as in this case, there is evidence to support a finding or inference drawn by a trial judge, an appellate court will be hard pressed to find a palpable and overriding error" - See paragraphs 24, 62 to 72.

Patents of Invention - Topic 1031

The specification and claims - Construction of a patent - Essential and non-essential elements - The Federal Court of Appeal stated that "[t]he key to a purposive construction of patent claims is the identification by the court of what the inventor considered to be the 'essential' elements of the invention, while distinguishing what is non-essential ... The onus is on the patentee to establish that an element is non-essential and thus substitutable. If the patentee fails to discharge that onus, the descriptive word or expression is to be considered essential unless the context of the claim language otherwise dictates ... For an element to be considered non-essential and thus substitutable, it must be shown either (a) that on a purposive construction of the words of the claim it was clearly not intended to be essential, or (b) that at the date of publication of the patent, the skilled person would have appreciated that a particular element could be substituted without affecting the working of the invention, i.e. had the skilled person at that time been told of both the element specified in the claim and the variant, and asked whether the variant would obviously work in the same way (meaning that the variant would perform substantially the same function in substantially the same way to obtain substantially the same result), the answer would be yes" - See paragraphs 84 and 85.

Patents of Invention - Topic 1031

The specification and claims - Construction of a patent - Essential and non-essential elements - Eurocopter developed a landing gear (the "Moustache"), that formed the basis of Eurocopter's Canadian Patent (the '787 patent) - The '787 Patent related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by two models of landing gear: the Legacy gear and the Production gear - The judge declared that Bell Helicopter had not infringed claim 15 by using and selling the Production landing gear - On appeal, Eurocopter submitted that any helicopter landing gear which was functionally equivalent to the Moustache landing gear infringed the '787 Patent, and that had the judge properly construed the essential elements of the claims, he would have found that the Production landing gear infringed the patent - The Federal Court of Appeal rejected those submissions as wholly inconsistent with the language of the patent - The only expert who held a contrary view on the matters was discarded by the judge, who noted that the expert's bare assertion that the double curvature was a non-essential element was unconvincing, not only when compared to the more compelling explanations of its essential nature, but even as per the language and the illustrations of the patent itself - The court was not convinced by Eurocopter that the judge committed an error in reaching his findings - See paragraphs 81 to 94.

Patents of Invention - Topic 1031

The specification and claims - Construction of a patent - Essential and non-essential elements - Eurocopter's "Moustouche" landing gear formed the basis of its Canadian Patent (the '787 patent) - The '787 Patent related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by two models of landing gear: the Legacy gear and the Production gear - The judge declared that Bell had not infringed claim 15 by using and selling the Production landing gear - On appeal, Eurocopter submitted that the invention should be considered and compared, for infringement purposes, from the perspective of its functional equivalence with other landing gears, such as Bell Helicopter's Production landing gear - The Federal Court of Appeal rejected that approach as "clearly inconsistent with the teachings of Free World Trust [v. Electro Santé Inc. et al. (2000) (S.C.C.)] since it fails to recognize the primacy of the language of the claims in determining the essential elements" - Eurocopter's functional equivalency submissions were not only incorrect in law, but also largely ignored the factual findings of the judge - See paragraphs 95 to 103.

Patents of Invention - Topic 1032

The specification and claims - Construction of a patent - Particular patents - Eurocopter's Canadian Patent (the '787 patent) related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by two models of landing gear: the Legacy gear and the Production gear - The judge declared that Bell Helicopter had infringed claim 15 by using the Legacy landing gear - On appeal, Bell Helicopter submitted that the judge erred in imposing limitations on the rear cross piece of the landing gear disclosed in the patent, and that the erroneous construction led the judge to dismiss prior art that would have anticipated the invention or rendered it obvious - The Federal Court of Appeal held that the judge's construction of the patent claim was consistent with the principles of patent construction - "[A]n informed and purposive construction of the claim language must be made with regard to the patent specification and to the common general knowledge of the skilled person as of the date of publication of the patent" - As found by the judge, the vertical or substantially vertical nature of the rear cross piece, as well as the parallel nature of the front and rear cross pieces, were both well-known characteristics of conventional helicopter landing gears included in the common general knowledge of the skilled person - The skilled person would readily understand that the "conventional" rear cross piece of the landing gear disclosed by the patent would be vertical or substantially vertical - The skilled person would also easily understand that by placing the front and rear cross pieces non-parallel, the inventors were signalling a clear distinction from the prior art - See paragraphs 75 to 80.

Patents of Invention - Topic 1582

Grounds of invalidity - Lack of "inventive ingenuity" (obviousness) - Test for obviousness - The Federal Court of Appeal discussed the test for obviousness, as "considerably refined in 2008 by the Supreme Court of Canada in Sanofi" [Sanofi-Synthelabo Canada Inc. et al. v. Apotex Inc. et al., (2008) (S.C.C.)] - See paragraphs 118 to 120.

Patents of Invention - Topic 1589

Grounds of invalidity - Lack of "inventive ingenuity" (obviousness) - Particular patents - Eurocopter developed a skid-type landing gear that addressed ground resonance instability issues - That landing gear formed the basis of Eurocopter's Canadian Patent (the '787 patent) - Eurocopter alleged that its competitor, Bell Helicopter, had infringed the '787 Patent by the Legacy landing gear and the Production landing gear - The judge declared that Bell Helicopter had infringed claim 15 by using the Legacy landing gear - On appeal, Bell Helicopter submitted that the judge erred in his obviousness analysis by defining the inventive concept of the '787 Patent with reference to the specification, and by incorporating advantages related to ground resonance behaviour and load factor reduction which were mentioned in the specification but not set out in the patent claims themselves - In its view, the construction of the inventive concept had to flow from the claims, not the specification - Consequently, the judge made an error of law in his construction of the inventive concept of the claims, calling for a de novo assessment of the four step Sanofi test for obviousness - The Federal Court of Appeal disagreed - "In Sanofi, the Supreme Court of Canada held that when the inventive concept is not apparent from the patent claims, recourse can be had to the specification. ... Moreover, the cases relied upon by Bell Helicopter are not authority for the proposition it advances." - Consequently, the judge made no error of principle in identifying the inventive concept as he did - See paragraphs 121 to 128.

Patents of Invention - Topic 1602

Grounds of invalidity - Anticipation - Test for - The Federal Court of Appeal discussed the test for anticipation, including anticipation by prior publication - See paragraphs 106 to 110.

Patents of Invention - Topic 1605

Grounds of invalidity - Anticipation - Particular patents - Eurocopter's Canadian Patent (the '787 patent) related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by the Legacy landing gear and the Production landing gear - The judge declared that Bell Helicopter had infringed claim 15 by using the Legacy landing gear - On appeal, Bell Helicopter submitted that the judge erred in rejecting its anticipation submissions based on the "Obstacle strike documents" - The judge found that the illustrations in those documents were "easily subject to misinterpretation"; that the text accompanying the illustrations was unhelpfully terse; and that "the double curvature which is an essential element of claim 1 of the '787 Patent is missing." - The judge concluded that since the test for anticipation left no place for guesswork, the documents did not allow a skilled person to arrive at the invention disclosed in the '787 Patent, and that Bell Helicopter had consequently failed to discharge its burden of proving that the disclosure and enablement requirements for anticipation were met - The Federal Court of Appeal, after reviewing the Obstacle strike documents, was not convinced that the judge committed a palpable and overriding error in his assessment - Since the illustrations were not conclusive, and since the accompanying text was unhelpful as to the configuration of the landing gears they disclosed, Bell's anticipation submissions were largely based on speculation, clearly failing to meet the test for anticipation - As a logical consequence, Bell Helicopter's Gillette defense also failed - See paragraphs 111 to 115.

Patents of Invention - Topic 1724

Grounds of invalidity - Lack of utility and operability - Doctrine of sound prediction - The Federal Court of Appeal discussed the case law relating to challenges to patent claims on the ground of lack of utility, including the doctrine of "sound prediction" - See paragraphs 129 to 134.

Patents of Invention - Topic 1724

Grounds of invalidity - Lack of utility and operability - Doctrine of sound prediction - [See second Patents of Invention - Topic 1725 ].

Patents of Invention - Topic 1725

Grounds of invalidity - Lack of utility and operability - Particular patents - Eurocopter's Canadian Patent (the '787 patent) related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by the Legacy landing gear and the Production landing gear - The judge declared that Bell Helicopter had infringed claim 15 by using the Legacy landing gear - The judge was satisfied that, in light of the actual testing that had been carried out, the inventors had clearly demonstrated the usefulness of the embodiment included in claim 15 in which the integrated front cross piece was offset forwards - On appeal, Bell Helicopter submitted that the judge should have set aside claim 15 for lack of demonstrated utility - The Federal Court of Appeal held that the submission completely ignored the factual findings of the judge and the abundant evidence concerning the utility for improved ground resonance performance of the embodiment of the invention with the front cross piece offset forwards - "It was not necessary for Eurocopter to test every minute variant of the inclination of the integrated front cross piece which was offset forwards in order to establish utility." - See paragraphs 135 to 140.

Patents of Invention - Topic 1725

Grounds of invalidity - Lack of utility and operability - Particular patents - Eurocopter's Canadian Patent (the '787 patent) related to a skid-type landing gear for helicopters - Eurocopter alleged that Bell Helicopter had infringed the '787 Patent by the Legacy landing gear and the Production landing gear - The judge found that claims 1 to 14 and 16 and the '787 Patent were invalid on the ground of lack of proven utility or of sound prediction - That finding was with respect to the embodiment of the landing gear with an integrated front cross piece offset backwards - On appeal, Eurocopter challenged the judge's finding, and also claimed that the judge erroneously imposed on it the burden of proving the utility of the embodiment with the backwards offset - Eurocopter further submitted that the judge erred in law by applying the doctrine of sound prediction to the field of mechanical inventions - The Federal Court of Appeal disagreed with the submission that the doctrine of sound prediction could not apply to the field of mechanical inventions - There was authority that the doctrine of sound prediction was not limited to pharmaceutical inventions - In the circumstances of this case, the court also disagreed with Eurocopter's position that a mathematical demonstration through calculations and mathematical modeling was evidence per se of utility - "[C]alculations to the effect that the embodiment should work in the manner claimed in the patent, or should give rise to the advantages, amounts to a prediction and not a demonstration of that utility." - The court agreed that Bell Helicopter was required to bring evidence that the inventors had not demonstrated or soundly predicted the promised utility of the embodiment of the invention with the front cross piece offset backwards - Such evidence was in fact submitted by Bell Helicopter and obviously accepted by the judge - It was incumbent on Eurocopter to submit evidence to rebut Bell Helicopter's experts - In light of the lack of any evidence of testing or of any calculations supporting a sound line of reasoning for the embodiment at the time the '787 Patent was applied for, Eurocopter's submissions failed - See paragraphs 141 to 162.

Patents of Invention - Topic 3006

Infringement of patent - Defences - Patent indistinguishable from prior art (Gillette defence) - [See Patents of Invention - Topic 1605 ].

Patents of Invention - Topic 3821

Infringement actions - Damages - General - [See second Damages - Topic 1318 ].

Cases Noticed:

Gillette Safety Razor Co. v. Anglo-American Trading Co. (1913), 30 R.P.C.(2d) 465 (H.L.), refd to. [para. 36].

Sanofi-Synthelabo Canada Inc. et al. v. Apotex Inc. et al., [2008] 3 S.C.R. 265; 381 N.R. 125; 2008 SCC 61, refd to. [para. 43].

Laboratoires Servier et al. v. Apotex Inc. et al. (2009), 392 N.R. 96; 75 C.P.R.(4th) 443; 2009 FCA 222, refd to. [para. 63].

General Tire & Rubber Co. v. Firestone Tyre and Rubber Co. (1972), 17 R.P.C. 457 (U.K.C.A.), refd to. [para. 63].

British Acoustic Films Ltd. v. Nettleford Productions (1935), 53 R.P.C. 221, refd to. [para. 64].

Free World Trust v. Electro Santé Inc. et al., [2000] 2 S.C.R. 1024; 263 N.R. 150; 2000 SCC 66, appld. [para. 65].

Abbott Laboratories et al. v. Canada (Minister of Health) et al. (2010), 404 N.R. 356; 85 C.P.R. (4th) 279; 2010 FCA 168, refd to. [para. 65].

Janssen-Ortho Inc. et al. v. Novopharm Ltd. (2007), 366 N.R. 290; 59 C.P.R.(4th) 116; 2007 FCA 217, affing. (2006), 301 F.T.R. 166; 2006 FC 1234, refd to. [para. 65].

Eli Lilly & Co. et al. v. Apotex Inc. (2009), 351 F.T.R. 1; 80 C.P.R.(4th) 1; 2009 FC 991, affd. (2010), 409 N.R. 173; 90 C.P.R.(4th) 327; 2010 FCA 240, refd to. [para. 66].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 67].

Weatherford Canada Ltd. et al. v. Corlac Inc. et al. (2011), 422 N.R. 49; 95 C.P.R.(4th) 101; 2011 FCA 228, refd to. [para. 67].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 70].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 70].

Whirlpool Corp. et al. v. Camco Inc. et al., [2000] 2 S.C.R. 1067; 263 N.R. 88; 2000 SCC 67, refd to. [para. 73].

Halford et al. v. Seed Hawk Inc. et al. (2006), 353 N.R. 60; 54 C.P.R.(4th) 130; 2006 FCA 275, refd to. [para. 74].

Improver Corp. v. Remington Consumer Products Ltd., [1990] F.S.R. 181 (U.K. Pat. Ct.), refd to. [para. 86].

Bauer Hockey Corp. et al. v. Easton Sports Canada Inc. (2011), 414 N.R. 69; 92 C.P.R.(4th) 103; 2011 FCA 83, refd to. [para. 96].

Bridgeview Manufacturing Inc. et al. v. 931409 Alberta Ltd. et al. (2010), 405 N.R. 32; 87 C.P.R.(4th) 195; 2010 FCA 188, refd to. [para. 96].

Canamould Extrusions Ltd. et al. v. Driangle Inc. (2004), 317 N.R. 91; 30 C.P.R.(4th) 129; 2004 FCA 63, refd to. [para. 96].

Calgon Carbon Corp. v. North Bay City et al. (2008), 375 N.R. 372; 64 C.P.R.(4th) 337; 2008 FCA 81, refd to. [para. 104].

Baker Petrolite Corp. et al. v. Canwell Enviro-Industries Ltd. et al., [2003] 1 F.C. 49; 288 N.R. 201; 2002 FCA 158, refd to. [para. 104].

Diversified Products Corp. and Brown Fitzpatrick Lloyd Patent Ltd. v. Tye-Sil Corp. (1991), 125 N.R. 218; 35 C.P.R.(3d) 350 (F.C.A.), refd to. [para. 105].

Synthon BV v. Smithkline Beecham plc, [2005] N.R. Uned. 180; [2006] 1 All E.R. 685; [2005] UKHL 59, refd to. [para. 107].

Beloit Canada Ltd. v. Valmet Oy (1986), 64 N.R. 287; 8 C.P.R.(3d) 289 (F.C.A.), refd to. [para. 109].

Procter & Gamble Co. v. Beecham Canada Ltd. and Calgon Interamerican Corp. (1982), 40 N.R. 313; 61 C.P.R.(2d) 1 (F.C.A.), refd to. [para. 116].

671905 Alberta Inc. et al. v. Q'Max Solutions Inc. (2003), 305 N.R. 137; 2003 FCA 241, refd to. [para. 116].

Windsurfing International Inc v. Tabur Marine (Great Britain) Ltd., 1985 R.P.C. 59 (C.A.), refd to. [para. 119].

Pozzoli SPA v. BDMO SA, [2007] F.S.R. 37; [2007] E.W.C.A. Civ. 588 (C.A.), refd to. [para. 119].

Sanofi-Aventis Canada Inc. et al. v. Apotex Inc. (2009), 350 F.T.R. 165; 77 C.P.R.(4th) 99; 2009 FC 676, refd to. [para. 122].

ratiopharm inc. v. Pfizer Ltd. (2009), 350 F.T.R. 250; 76 C.P.R.(4th) 241; 2009 FC 711, refd to. [para. 122].

Allergan Inc. et al. v. Canada (Minister of Health) et al. (2012), 440 N.R. 269; 105 C.P.R.(4th) 371; 2012 FCA 308, refd to. [para. 124].

Sanofi-Aventis Canada Inc. et al. v. Apotex Inc. (2011), 426 N.R. 196; 2011 FCA 300, refd to. [para. 125].

Apotex Inc. and Novopharm Ltd. v. Wellcome Foundation Ltd., [2002] 4 S.C.R. 153; 296 N.R. 130; 2002 SCC 77, refd to. [para. 129].

Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd., [1981] 1 S.C.R. 504; 35 N.R. 390, refd to. [para. 130].

Unifloc Reagents Ltd. v. Newstead Colliery Ltd. (1943), 60 R.P.C. 165, refd to. [para. 130].

Apotex Inc. v. Sanofi-Aventis (2013), 447 N.R. 313; 2013 FCA 186, refd to. [para. 132].

Monsanto Co. v. Commissioner of Patents, [1979] 2 S.C.R. 1108; 28 N.R. 181, refd to. [para. 133].

Cabot Corp. et al. v. 318602 Ontario Ltd. et al. (1988), 17 F.T.R. 54; 20 C.P.R.(3d) 132 (T.D.), refd to. [para. 146].

Westaim Corp. v. Royal Canadian Mint (2002), 224 F.T.R. 184; 23 C.P.R.(4th) 129; 2002 FCT 1217, refd to. [para. 146].

Pfizer Canada Inc. et al. v. Novopharm Ltd. et al., [2012] 3 S.C.R. 625; 436 N.R. 299; 2012 SCC 60, refd to. [para. 151].

Teva Canada Ltd. v. Pfizer Canada Inc. - see Pfizer Canada Inc. et al. v. Novopharm Ltd. et al.

Eli Lilly Canada Inc. v. Apotex Inc. et al. (2009), 392 N.R. 243; 78 C.P.R.(4th) 388; 2009 FCA 97, refd to. [para. 151].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 163].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 163].

Construction Denis Desjardins inc. v. Jeanson, [2010] R.J.Q. 1600; 2010 QCCA 1287, refd to. [para. 166].

France Animation v. Robinson, [2011] R.J.Q. 1415; 2011 QCCA 1361, refd to. [para. 166].

Apotex Inc. v. Merck & Co. et al. (2003), 307 N.R. 364; 26 C.P.R.(4th) 278; 2003 FCA 291, dist. [para. 172].

Lubrizol Corp. et al. v. Imperial Oil Ltd. et al., [1996] 3 F.C. 40; 197 N.R. 241; 67 C.P.R.(3d) 1 (F.C.A.), refd to. [para. 173].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 181].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 182].

Robitaille v. Vancouver Hockey Club Ltd. (1981), 124 D.L.R.(3d) 228 (B.C.C.A.), refd to. [para. 182].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 188].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 29, p. 59 [para. 130].

Canadian Patent Office, Manual of Patent Office Practice, paras. 12.08.04b, 12.08.04c [para. 154].

Counsel:

Judith Robinson and Joanne Chriqui, for the appellant;

Marek Nitoslawski and Julie Desrosiers, for the respondent.

Solicitors of Record:

Norton Rose Canada LLP, Montreal, Quebec, for the appellant;

Fasken Martineau Dumoulin S.E.N.C.R.L., s.r.l., Montreal, Quebec, for the respondent.

This appeal and cross-appeal were heard at Montréal, Quebec, on May 27 and 28, 2013, before Noོl, Trudel and Mainville, JJ.A., of the Federal Court of Appeal. In reasons for judgment written by Mainville, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, on September 24, 2013.