Summary

Keywords

Evidence — Fresh evidence — Remedy — Patent holder moving to admit new evidence on appeal — Motion judge granting motion and admitting evidence for consideration on the appeal — Appeal court considering new evidence and admitting it only for purpose of dealing with validity of one specified claim — What rules apply to admission of fresh evidence after trial in the Federal Court —What principles apply to the admission of expert evidence in patent cases in the Federal Court — Was the principle of finality of litigation in circumstances of a successful appeal breached by the Federal Court of Appeal’s remedy?

Summary

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The applicant, dTechs EPM Ltd. (“dTechs”), is the owner of a Canadian patent that relates generally to monitoring usage of utilities for alteration in normal patterns of consumption. dTechs alleged that the respondent, British Columbia Hydro and Power Authority (“BC Hydro”) uses a system, supplied by the respondent, Awesense Wireless Inc. (“Awesense”) that relies on the methods described in its patent, and thereby infringes specified claims of the patent. The respondents counterclaimed that the asserted claims of the patent were invalid. The Federal Court dismissed dTechs’ claim for infringement and declared the claims at issue invalid on the grounds of anticipation and obviousness. dTechs appealed. After filing its notice of appeal, it obtained new evidence in the context of the assessment of BC Hydro’s costs. It moved to admit the expert working agreement and invoices. A single judge granted the motion and allowed dTech to amend its notice of appeal to include a new ground and admitted the new evidence for consideration on the appeal. The Federal Court of Appeal concluded that although the new evidence might have had some impact on the weight afforded to BC Hydro’s expert, it could not have affected the result of the infringement action. With respect to the counterclaims alleging invalidity, it was satisfied that certain findings of the Federal Court could not be affected by the new evidence but that the new evidence could have had an impact on the Federal Court’s findings that dependent claim 4 was anticipated by publication and obvious. It therefore admitted the new evidence only for the purpose of dealing with the validity of that claim and allowed the appeal in part.

Lower Court Rulings