Eurocopter v. Bell Helicopter Textron Canada Ltd., (2013) 449 N.R. 306 (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. 306 (FCA);2013 FCA 220

Eurocopter v. Bell Helicopter Textron (2013), 449 N.R. 306 (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.019

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

(A-328-12; 2013 FCA 220; 2013 CAF 220)

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

Federal Court of Appeal

Noël, Trudel and Mainville, JJ.A.

September 24, 2013.

Summary:

Bell Helicopter Textron Canada Lt. and Eurocopter were involved in patent infringement litigation which resulted in a judgment, reported at (2012), 404 F.T.R. 193. Bell Helicopter and Eurocopter respectively appealed and cross-appealed.

The Federal Court of Appeal, in a decision reported at 2013 FCA 219, dismissed both the appeal and the cross-appeal, for reasons issued concurrently with these reasons. Subsequent to the patent infringement judgment, the judge issued the costs judgment, cited as 2012 FC 842. Bell Helicopter was ordered to pay 50% of Eurocopter's costs (calculated at the upper end of column IV of Tariff B) with respect to reasonable fees and expenses for one senior counsel, two junior counsel, expert witnesses, one in-house counsel, one technical representative, and other taxable pre-trial, trial and post-trial costs and disbursements related to the litigation leading to the patent infringement judgment. Bell Helicopter appealed.

The Federal Court of Appeal dismissed the appeal, with costs in favour of Eurocopter.

Courts - Topic 4069

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Costs (incl. security for costs) - Eurocopter developed a helicopter landing gear 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 - The judge found that the Legacy landing gear infringed claim 15 of the '787 Patent - The judge consequently issued an injunction, ordered the destruction of the Legacy landing gears, and declared that Eurocopter was entitled to damages, including punitive - Under the costs judgment, the judge found that Eurocopter was overall the most successful party, and ordered Bell Helicopter to pay 50% of Eurocopter's costs (calculated at the upper end of column IV of Tariff B) - Bell Helicopter appealed the costs judgment - The Federal Court of Appeal upheld the costs award - The invalidation of the other claims of the '787 Patent had little practical effect on the overall litigation - Though Bell Helicopter was successful with respect to its Production landing gear, the judge took that factor into account by reducing the costs award by 50% - The judge's assessment was that Bell Helicopter unduly complicated and prolonged the litigation - That assessment was supported by the evidence - Nor did the judge err by awarding costs with respect to Eurocopter's technical representative, one of the co-inventors - The judge found his testimony to be particularly relevant - As for the submission that Eurocopter should have presented affidavit evidence in support of its motion for directions on costs, "arguments for directions on costs may be addressed without affidavit evidence insofar as they are supported by evidence adduced at the trial or the Judge's knowledge of the trial" - The directions on costs were based on correct principles.

Patents of Invention - Topic 8186

Practice - Costs - Entitlement - [See Courts - Topic 4069 ].

Cases Noticed:

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 7].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 7].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 8].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 8].

Merck & Co. et al. v. Apotex Inc. (2006), 354 N.R. 355; 55 C.P.R.(4th) 81; 2006 FCA 324, refd to. [para. 8].

Buhlman et al. v. Buckley et al. (2012), 426 N.R. 1; 346 D.L.R.(4th) 251; 2012 FCA 9, refd to. [para. 8].

Wellcome Foundation Ltd. v. Apotex Inc. (2001), 12 C.P.R.(4th) 25 (F.C.T.D.), refd to. [para. 14].

Eli Lilly and Co. et al. v. Apotex Inc., [2011] F.T.R. Uned. 702; 2011 FC 1143, refd to. [para. 14].

Statutes Noticed:

Federal Courts Rules, SOR/98-106, rule 400(3)(i), rule 400(3)(j) [para. 11].

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 was heard at Montreal, Quebec, on May 27 and 28, 2013, by Noël, Trudel and Mainville, JJ.A., of the Federal Court of Appeal. In reasons written by Mainville, J.A., the Court delivered the following judgment, dated September 24, 2013, at Ottawa, Ontario.