PATENTS - Defences to infringement - Lack of essential element

Appeal by Evolution Technologies from a judgment finding it infringed the respondent’s patent. The parties both supplied mobility aiding devices including walkers with wheels. The Federal Court found every essential element of the claims of the respondent’s patent at issue was present in the appellant’s walker. It found the tension rod means element set out in the claims was present in the appellant’s walker. The Court found the patent was valid and awarded remedies including a permanent injunction, reasonable compensation for the period between the launch of the appellant’s walker and the issuance of the patent, and an accounting and disgorgement of profits.

HELD: Appeal allowed; the respondent’s action was dismissed. The Federal Court implicitly came to the construction that “tension rod means” in the claims captured only means that were primarily in tension. It committed an error of law by failing to apply that construction in its consideration of infringement. Since the tension rod means element was an essential element of the claims that the respondent asserted, that was fatal to the finding that the patent was infringed. If the Federal Court applied its construction of tension rod means, it would have had no factual basis to conclude the appellant’s beam was primarily in tension when in use.

Human Care Canada Inc. v. Evolution Technologies Inc., [2019] F.C.J. No. 853, Federal Court of Appeal, E.R. Dawson, D.W. Stratas and J.B. Laskin JJ.A., July 18, 2019. Digest No. TLD-September22019005