Docket:
A-74-12
Citation: 2013 FCA 261
CORAM: NOËL
J.A.
TRUDEL
J.A.
MAINVILLE J.A.
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A-74-12
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BETWEEN:
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BELL HELICOPTER TEXTRON
CANADA LIMITÉE
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Appellant
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and
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EUROCOPTER,
société
par actions simplifiée
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Respondent
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REASONS FOR ORDER
MAINVILLE J.A.
[1]
Following a long trial, Martineau J. of the Federal Court issued
on January 30, 2012 reasons for judgment and judgment (bearing citation number
2012 FC 113) in a patent infringement and validity case concerning Eurocopter’s
Canadian Patent No. 2,207,787 (the ‘787 Patent) by which he:
(a) declared that
Bell Helicopter Textron Canada Limitée (“Bell Helicopter”) had infringed claim
15 of the ‘787 Patent by using a helicopter landing gear known as the “Legacy
landing gear”;
(b) declared that
Bell Helicopter had not infringed claim 15 of the ‘787 Patent by using and
selling a helicopter landing gear known as the “Production landing gear”;
(c) enjoined Bell
Helicopter from manufacturing, using or selling the Legacy landing gear or any
similar landing gear until the ‘787 Patent expires or is otherwise held to be
invalid;
(d) declared that
Eurocopter was entitled to all damages, including punitive damages, as a result
of its infringement of claim 15 of the ‘787 Patent, the quantum of which to be
determined in subsequent hearings; and
(e) invalidated all
the other claims of the ‘787 Patent.
[2]
Bell Helicopter appealed this judgment to this
Court, and Eurocopter cross-appealed, notably with respect to the invalidation
of the patent claims. This Court dismissed both the appeal and the cross-appeal
in a judgment dated September 24, 2013 for the reasons set out in Bell
Helicopter Textron Canada Limitée v. Eurocopter, société par actions simplifée,
2013 FCA 219.
[3]
Eurocopter has now submitted a motion in writing pursuant to Rule 397 of
the Federal Courts Rules, SOR/98-106 requesting this Court to reconsider
its reasons. As a result of such a reconsideration, Eurocopter asks that paragraphs
157 and 158 of this Court’s reasons be modified in such a way as to recognize
that the specification of the ‘787 Patent provides that the embodiment of the
invention set out in claim 16 (which was invalidated) has the advantage of
improving ground resonance behaviour in helicopters. In its reply to Bell
Helicopter’s motion material, Eurocopter adds in vague terms that these corrections
to paragraphs 157 and 158 of the Court’s reasons should lead this Court to also
reconsider its judgment.
[4]
Presumably, the reconsideration sought by Eurocopter would result in
this Court (a) finding that the ‘787 Patent holds a sound line of reasoning
with respect to the utility of the embodiment of the invention with a front
cross-piece offset backwards, and (b) modifying accordingly its judgment by
allowing Eurocopter’s cross-appeal with respect to claim 16 and the other
patent claims which have been invalidated.
[5]
For the reasons further set out below, I would dismiss this motion.
[6]
Claim 15 of the ‘787 Patent concerns an embodiment of the helicopter
landing gear at issue with an integrated front cross piece which is offset forwards
with respect to the plane of contact of the longitudinal support surfaces of
the skids on the ground (offset forwards embodiment), while claim 16 of that
patent concerns an embodiment of the landing gear with an integrated front
cross piece which is offset backwards with respect to that plane of
contact (offset backwards embodiment).
[7]
Martineau J. found that the specification of the ‘787 Patent contained
the following with respect to the offset forwards embodiment set out in
claim 15:
[351] It is taught in the ‘787 Patent that the ground resonance behaviour
is characterized in particular by the landing gear’s roll stiffness. In this
regard, the inventors mention in the specification that the variant
according to which the support points of the front cross piece are offset
longitudinally towards the front of the aircraft (claim 15), such as the
embodiment shown at Figure 1, has the advantage of allowing the roll operation
of the assembly to cause the front piece to work both in torsion and in bending
rather than in pure bending.
[352] Thus, in reading the specification, the POSITA would understand
that in making a landing gear similar to Figure 1 [the offset forwards embodiment],
the ground resonance behaviour of the helicopter (notably in the roll mode) can
be improved. Although reduction in roll stiffness is not specifically
promised, a better frequency adaptation, in relation to the phenomenon known as
“ground resonance”, is certainly an important promise of the ‘787 Patent,
together with other disclosed advantages of the invention. At this point, one
must ask itself whether there are tests or data to support such a promise.
[Emphasis
added]
[8]
Martineau J. also found that the inventors had successfully tested the
offset forwards embodiment described in claim 15 of the ‘787 Patent prior to
the Canadian filing date, and that they had consequently demonstrated its
utility: Martineau J.’s Reasons at paras. 353 to 360.
[9]
However, Martineau J. invalidated claim 16 of the patent on the ground
that - contrary to claim 15 concerning the offset forwards embodiment - there
was a lack of demonstrated utility or sound prediction with respect to the
embodiment with the integrated front piece offset backwards: Martineau J. Reasons
at para. 360.
[10]
Martineau J. came to that conclusion principally on the followings
grounds:
[362] According to the specification, the variant in Figure 11e [the
offset backwards embodiment set out in claim 16] “procures the specific
advantages” mentioned elsewhere in the specification. Thus, the POSITA would
understand that in choosing to implement this particular embodiment of the
Moustache landing gear, it is specifically promised by the inventors that this
will also allow a manufacturer of helicopters to reduce costs and to mix
flexibility with ground resonance safety.
[363] Apart from the general assertion that the embodiment shown in Figure
11e “procures the specific advantages” mentioned elsewhere in the
specification, there is no particular demonstration in the patent, nor
testimonial or documentary evidence that, at the Canadian filing date, the
inventors had made and tested a Moustache landing gear whose front cross piece
was offset backwards.
[364] Moreover, Dr. Wood was very reluctant at trial to conclude that the
promised utility of an embodiment whereby the integrated front cross piece is
offset backwards had been demonstrated at the Canadian filing date. No
calculations or tests were performed prior to the filing date to determine the
effect of this configuration on ground resonance.
[365] At the Canadian filing date, the inventors had no evidence that
an inclination backwards had any ground resonance advantage. Therefore, the
promised advantage with respect to an embodiment included in claim 16 of
the ‘787 Patent is speculative and this Court accepts Bell’s experts
assertion that there was no factual basis for the prediction.
[366] Furthermore, even if Eurocopter’s experts suggested that this
configuration would also yield a flexible landing gear, the Court accepts Dr.
Hodges’s testimony that a POSITA would think that such a landing gear “might be
more vulnerable to buckling on impact than the forward slant, which would cause
the landing gear to suffer a possible mode of failure”.
[367] Even if it is accepted that the results presented at pages 9-14 and
Figures 12 and 13 of the ‘787 Patent demonstrate the flexion of the transition
zone of a landing gear with a front cross piece offset forwards (claim 15), the
fact remains that there was no demonstration for a landing gear with a front
cross piece offset backwards (claim 16).
[368] Absent any evidence of actual testing by the inventors, perhaps the
inventors had data upon which they could have predicted that the variant in
Figure 11e (claim 16) “procures the specific advantages” mentioned elsewhere in
the specification. If any such data existed at the time, it has not been
produced in this trial. Monopoly cannot be founded on speculation or
guessing. The Court accepts at least on this point Bell’s experts’ opinion that
available data did not support a sound prediction with respect to an embodiment
included in claim 16 (offset backwards).
[369] After careful consideration of the factual and expert evidence, the
Court finds on a balance of probabilities that contrary to the principle
clearly articulated by Justice Layden-Stevenson in Eli Lilly v Novopharm,
above, at para 60, the inventors had no information upon which to base the
promise they expressly made in respect of the variant in Figure 11e. The
utility of a helicopter landing gear according to claim 16 had not been
demonstrated at the Canadian filing date, namely, June 5, 1997. Moreover,
relevant data available prior to June 5, 1997, did not permit the inventors to
soundly predict the behaviour of a Moustache landing gear with a front cross
piece which is offset backwards and in any event, there is no line of reasoning
described in the '787 Patent in that respect.
[Emphasis added]
[11]
Eurocopter acknowledged that it had never tested the embodiment of the
invention with a front cross piece offset backwards. It nevertheless argued in
its cross-appeal that it had demonstrated the utility of the offset backwards
embodiment through mathematical calculations or, alternatively, through sound
prediction. It specifically submitted (at para. 147 of its Memorandum of fact
and law relating to its cross-appeal) that Martineau J. had erred in finding
that no sound line of reasoning had been described in the ‘787 Patent with
respect to the offset backwards embodiment. At footnote 251 of its Memorandum
in cross-appeal, it specifically referred for this purpose to page 3 line 20 to
page 4 line 3 of the ‘787 Patent, which reads as follows in the original French
version:
La variante selon
laquelle les points d’appui au sol de la traverse avant sont déportés
longitudinalement vers l’avant de l’appareil par rapport aux points de fixation
sur la structure de celui-ci présente l’avantage de permettre que le
fonctionnement en roulis de l’ensemble fasse travailler la traverse avant à la
fois en torsion et en flexion au lieu d’en flexion pure. Il en résulte une
raideur en roulis abaissée, ce qui améliore le comportement de l’hélicoptère en
résonnance sol dans le mode de roulis, ce qui évite tout phénomène divergent
risquant de causer un accident.
[12]
This Court dismissed these submissions of Eurocopter, and rather
confirmed the findings and conclusions of Martineau J. concerning the lack of
demonstrated utility and of sound prediction with respect to the offset
backwards embodiment. In particular, this Court stated the following at
paragraphs 157 to 162 of its Reasons:
[157] However, the specification also sets out that it is the embodiment of
the invention in which the front cross piece is offset forwards (as
provided in claim 15) which “has the advantage of allowing the roll operation
of the assembly to cause the front piece to work both in torsion and in bending
rather than in pure bending”: Reasons at para. 351.
[158] As noted by the Judge (at para. 352 of the Reasons) a skilled person
reading the specification would understand from this that the landing gear
under the embodiment of a front cross piece forward inclination would
improve the ground resonance behavior of the helicopter, notably in the roll
mode. However, by reading the specification, a skilled person would not readily
come to the same conclusion with respect to the embodiment of a front cross
piece backward inclination, since there is no demonstration or
explanation to this effect in the specification (Reasons at para. 363).
[159] In this case, Eurocopter did not provide evidence that it had either
demonstrated or soundly predicted the utility of the backward inclination embodiment
prior to the pertinent date. Eurocopter did not do so in the patent
specification and it failed to do so at trial. In its Memorandum, it points to
the testimony of Mr. Pierre Prud’homme Lacroix, but fails to identify any
specific aspect of this testimony which provides cogent evidence of any sound
prediction based on the backward inclination embodiment.
[160] Eurocopter however submits that it was not required to submit any
evidence of utility or of sound prediction with respect to the backward
inclination embodiment since Bell Helicopter had the burden of demonstrating
invalidity on this ground.
[161] I agree 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: Expert Statement of Dr. Hodges at paras. 132 and 171 (AB Vol. 11 Tab 149
at pp. 2876 and 2886); Expert Statement of Dr. Gandhi at para. 124 (AB Vol. 12
Tab 162 at p. 3126). As noted by Dr. Hodges, there were no documents supplied
by Eurocopter with respect to the embodiment with the front cross piece offset
backwards, and that embodiment appeared more susceptible to buckling on impact.
[162] 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 this embodiment at the
time the ‘787 Patent was applied for, Eurocopter’s submissions must fail.
[13]
Eurocopter now says that paragraphs 157 and 158 of the Court’s reasons
are the result of inadvertence or of a clerical error. To support its motion
for reconsideration, it submits again the very same argument as the one it originally
made at paragraph 147 of its Memorandum of fact and law relating to its cross-appeal,
i.e. that page 3 line 20 to page 4 line 3 of the ‘787 Patent (reproduced
above) set out a sound line of reasoning which demonstrates the utility of the
offset backwards embodiment.
[14]
There are three principal reasons why Eurocopter’s motion should be
dismissed.
[15]
First, Eurocopter’s motion is a rather crude attempt to argue anew
a ground of appeal which it had been originally raised in its Memorandum of
fact and law with respect to its cross-appeal. As aptly noted by Hugessen J.A.
in Kibale v. Canada (Transport Canada) (F.C.A.) (1988), 103 N.R. 387,
the rule allowing for reconsideration “is not a means whereby the losing party
may validate or complete his plea.” Likewise, that rule is not a means by which
a litigant may argue an issue a second time in the hope that the Court will
change its mind.
[16]
Second, Martineau J.’s findings set out above, and which were
fully confirmed by this Court, were based on an interpretation of the patent
specification as a whole, including particularly the drawings reproduced in the
patent. Moreover, these findings were made with due regard to the abundant expert
evidence which was before Martineau J. as to how a person skilled in the art or
science to which the patent pertains would understand both the patent specification
and the patent claims.
[17]
Martineau J. clearly acknowledged that the specification of the ‘787
Patent spelled out that the offset backwards embodiment would produce the
advantages claimed by the inventors, including improved ground resonance
behaviour. However, Martineau J. also concluded that simply promising the
advantages was not the equivalent of providing a sound line of reasoning. He
also found that no cogent line of reasoning with respect to the offset backward
embodiment had been set out in the patent. This Court agreed with him. As a
result, the submission made by Eurocopter at paragraph 147 of its Memorandum of
fact and law relating to the cross-appeal was clearly rejected by this
Court.
[18]
Third, even if Martineau J. had erred with respect to this
matter, and even if the specification of the ‘787 Patent did set out some form
of a line of reasoning with respect to the offset backwards embodiment, this
would not lead to the result sought by Eurocopter. Indeed, Bell
Helicopter had brought 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. It would therefore have still been
incumbent on Eurocopter to rebut that evidence through its own evidence of
testing or through calculations supporting a sound line of reasoning for that
embodiment at the time the ‘787 Patent was applied for. Eurocopter failed to do
so. As a result, its cross-appeal would still fail.
[19]
As a final procedural issue, Bell Helicopter challenges the
appropriateness of the affidavit submitted by Julie Desrosiers (an attorney
working for the law firm representing Eurocopter) in support of Eurocopter’s
motion. This affidavit does not simply seek to add to the record certain
uncontested facts or documents. Rather, it seeks to set out a particular
interpretation of the ‘787 Patent by someone who is clearly not a person
skilled in the art or science to which the patent pertains. The affidavit even
includes a new drawing never before produced in the record. It is also
argumentative and largely irrelevant. The affidavit is improper, and it should
be disregarded and struck from the record. As noted in Merk & Co. v.
Apotex Inc., 2003 FCA 488, 30 C.P.R. (4th) 40 at para. 48, this
Court does not look favorably to affidavits deposed by counsel when the
affidavits refer to contentious issues of substance.
[20]
I would consequently strike from the record the affidavit of Julie
Desrosiers sworn October 4th, 2013. I would also dismiss
Eurocopter’s motion with costs.
"Robert M. Mainville"
“I agree.
Marc Noël J.A.”
“I agree.
Johanne Trudel J.A.”
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