• Appeal of a Finding of Non-Infringement of a U.S. Patent Dismissed
  • June 22, 2017 | Authors: Chantal Saunders; Beverley Moore; Adrian J. Howard; Jillian Brenner
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • OrthoArm Incorporated v. GAC International LLC, 2017 ONCA 418

    The Ontario Court of Appeal dismissed an appeal of the Trial Judge's decision finding that the Respondent had not infringed the Appellant's patent in respect of an orthodontic bracket. A brief background to the action is that the Appellant had licensed the worldwide rights to manufacture, use, market, and sell products covered by its U.S. Patent (the "715 Patent") to the Respondent. The Respondent later began to market and sell orthodontic brackets it had developed with a third party manufacturer. The Appellant alleged that these brackets were an extension of its original invention and were covered by the 715 Patent and commenced an action against damages and other relief for breach of a license agreement.

    On appeal, the Appellant asserted that the Trial Judge erred in the application of relevant U.S. patent law principles in construing the claims in the 715 Patent, and in concluding that the products did not infringe the claims. The Court of Appeal applied a standard of correctness since the issue concerned only the Trial Judge's construction of the claims in the 715 Patent. The Court of Appeal dismissed the Appellant's arguments, including that the Trial Judge erred in equating the word "movable" with "slidable" and in failing to give these words their common, ordinary and distinct meanings. The Court of Appeal found that the Trial Judge did not ignore the fact that these two terms are different word with different meanings. The Court also noted that it is not sufficient to simply look at the words in isolation or in the abstract. Rather, the Court stated that words must be considered within the context, which is the specification. The Court of Appeal also dismissed the appeal in respect of the costs awarded to the Respondent.