Bell Helicopter Textron Canada Limitée v. Eurocopter, société par actions simplifiée

Bell Helicopter Textron Canada Limitée v. Eurocopter, société par actions simplifiée
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-09-24
Neutral citation
2013 FCA 219
File numbers
A-74-12
Decision Content
Date: 20130924
Docket: A-74-12
Citation: 2013 FCA 219
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
BELL HELICOPTER TEXTRON
CANADA LIMITÉE
Appellant
and
EUROCOPTER,
société par actions simplifiée
Respondent
Heard at Montréal, Quebec, on May 27 and 28, 2013.
Judgment delivered at Ottawa, Ontario, on September 24, 2013.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: NOËL J.A.
TRUDEL J.A.
Date: 20130924
Docket: A-74-12
Citation: 2013 FCA 219
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
BELL HELICOPTER TEXTRON
CANADA LIMITÉE
Appellant
and
EUROCOPTER,
société par actions simplifiée
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] This concerns an appeal by Bell Helicopter Textron Canada Ltée (“Bell Helicopter”) and a cross-appeal by Eurocopter from a judgment of Martineau J. of the Federal Court (the “Judge”) dated January 30, 2012, bearing citation number 2012 FC 113 (the “Reasons”), which:
(a) declared that Bell Helicopter had infringed claim 15 of Canadian Patent No. 2,207,787 (the ‘787 Patent) owned by Eurocopter 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 following a bifurcation order requested by both litigants; and
(e) invalidated all the other claims of the ‘787 Patent.
[2] Bell Helicopter appeals principally on the grounds that claim 15 of the ‘787 Patent is invalid, that its Legacy landing gear does not infringe the ‘787 Patent, and that, in any event, the finding that punitive damages could be awarded was inappropriate.
[3] Eurocopter cross-appeals principally on the grounds that all the claims of the ‘787 Patent are valid, and that Bell Helicopter’s Production landing gear infringes those claims.
[4] For the reasons further set out below, I would dismiss both the appeal and the cross-appeal.
GENERAL BACKGROUND
[5] The background to the litigation and the pertinent facts are extensively set out in the 464 paragraphs of the judgment of Martineau J., and need not be repeated here. For the purposes of this appeal, it is sufficient to simply highlight some salient aspects.
[6] Both Eurocopter and Bell Helicopter are major manufacturers of helicopters, which they both market and sell to clients worldwide. Helicopters incorporate very complex pieces of machinery to achieve amazing flight capabilities. They require highly specialized technical and engineering skills to build, maintain and operate.
[7] An important feature of a helicopter is its landing gear, which presents special technical challenges. One of these challenges is known as ground resonance instability, a dangerous phenomenon. The Judge described this technical challenge at paras. 218 to 221 of the Reasons. It results from an energy exchange between the main rotor of the helicopter and the helicopter structure on the ground. Typically, the regressive in-plane mode of the rotor couples with the pitch, roll or lateral motion of the helicopter on its landing gear, and ground resonance occurs. Ground resonance instability is traditionally resolved through mechanical anti-ground resonance systems, such as dampers.
[8] While working on a new light helicopter design in the mid-1990’s, Eurocopter developed a landing gear known as the “Moustache”, which is a “sleigh type” landing gear that advantageously addresses ground resonance instability issues. This landing gear formed the basis of the ‘787 Patent, which was filed in Canada on June 5, 1997, with a priority date of June 10, 1996 based on a patent application filed in France. The Moustache landing gear has since had a very large commercial success, with no reports of ground resonance instability associated with its use. It is principally sold with Eurocopter’s EC120 and EC130 helicopters.
[9] Figure 1 of the ‘787 Patent is an isometric view of the Moustache type landing gear:
[10] In the early 2000’s, Bell Helicopter had two separate helicopter programs: the Bell 427i program, and the Modular Affordable Products Line (“MAPL”) program. Elements of these two programs were combined in September of 2004 to eventually lead to the development of the Bell 429 helicopter. The landing gear for this helicopter was a sleigh type landing gear taken from the MAPL program and which is known as the “Legacy landing gear”: Reasons at paras. 169-170.
[11] As Bell Helicopter had never designed a helicopter with a sleigh type landing gear, it studied the performance of an EC120 helicopter. It leased and operated an EC120 from approximately March to June 2003 and performed various tests on that helicopter. Bell Helicopter employees received training on the EC120 helicopter in March 2003: Reasons at para. 172.
[12] The Judge found (at para. 172 of the Reasons) that Bell Helicopter’s internal documents suggest that the tests it conducted on the EC120 were to acquire better knowledge in order “to reduce the risk in the MAPL program regarding the ground resonance issues” and that “[t]he data obtained during the ground shake test could be used to design better landing gears for future Bell products”.
[13] The sleigh type Legacy landing gear was made or assembled by Bell Helicopter in March of 2003: Reasons at para. 171. The Judge reproduced the following isometric views of the Legacy landing gear at paras. 23 and 394 of the Reasons:
[14] The Bell 429 helicopter equipped with the Legacy landing gear achieved its first flight on February 27, 2007 at Bell Helicopter’s facilities in Mirabel, Quebec. However, certification of the Bell 429 with the Legacy landing gear was never completed in light of the action for patent infringement launched by Eurocopter in May of 2008.
[15] Following the initiation of these proceedings, Bell Helicopter quickly developed a modified landing gear for the Bell 429, now known as the Production landing gear. As found by the Judge (at paras. 179 to 184 of the Reasons), the general idea was to modify the Legacy landing gear sufficiently to eliminate any alleged infringement to the ‘787 Patent.
[16] The Judge reproduced the following isometric views of the Production landing gear at paras. 25 and 395 of the Reasons:
[17] The Production landing gear is sold by Bell Helicopter with the Bell 429 helicopter. No helicopter equipped with the Legacy landing gear has been sold, though helicopters equipped with that gear were used in the early marketing efforts for the Bell 429.
THE JUDGMENT OF THE FEDERAL COURT
[18] After setting out the legal principles which applied (paras. 39 to 80 of the Reasons), the Judge extensively reviewed the abundant evidence which had been submitted by the litigants throughout the lengthy trial, including profuse reports and testimony from numerous experts (paras. 81 to 184 of the Reasons).
[19] The Judge then considered the principal issues before him, notably (a) the construction of the ‘787 Patent (paras. 185 to 249); (b) whether Bell Helicopter’s Production landing gear infringed the patent (paras. 251 to 263), (c) whether Bell Helicopter’s Legacy landing gear also infringed (paras. 264 to 292), and (d) whether the claims in the ‘787 Patent were invalid on the grounds of obviousness (paras. 294 to 311), insufficient disclosure (paras. 312 to 332), or lack of utility or of sound prediction (paras. 333 to 376).
[20] The Judge completed his analysis with a discussion of the appropriate remedies, including the declarations and injunctions he intended to issue (paras. 389 to 405), the option between damages and accounting for profits (paras. 406 to 416), and the availability of punitive damages (paras. 417 to 456).
Construction of the ‘787 Patent
[21] The Judge organized his analysis of the construction of the patent around the following four issues: (1) the skilled person; (ii) the common general knowledge of the skilled person; (iii) the promised utility of the invention; and (iv) claims construction.
(i) The skilled person
[22] The Judge construed the patent though the eyes of a person skilled in the art or science to which the invention pertains (herein referred to as the “skilled person”), which he extensively defined at paras. 187 to 198 of the Reasons. The skilled person would be someone with at least a Bachelor’s degree in engineering, typically in aerospace or mechanical engineering, and who would be familiar with the design of landing gears and the overall aircraft system, as well as with skills in related technical calculations, and an understanding of related scientific principles. The skilled person would also be knowledgeable about ground resonance and the ways which are known in the art to control or prevent this phenomenon.
[23] Owing to the sophisticated knowledge required to design helicopter landing gears, the Judge found (at para. 190) that no more than a few hundred engineers, either employed or retired, would qualify as a skilled person to whom the ‘787 Patent was addressed.
(ii) The common general knowledge of the skilled person
[24] The Judge then went on to define the scope of the general common knowledge of the skilled person in relation to the field of the patent, which he defined (at paras. 199 to 210 of the Reasons) as skid type helicopter landing gears. He found that the common general knowledge in this field included prior art that would generally be regarded as a good basis for further action in the design of skid-type helicopter landing gears. The common general knowledge in the field of conventional skid-type landing gears was thus defined under prior art by an orthogonal design having long, straight and usually circular tubes oriented longitudinally, ending with a short ski type protrusion at the front end, similar to the general design shown on the isometric view set out at para. 209 of the Reasons, and here reproduced:
In this conventional design, the front and rear cross pieces are parallel with respect to each other and they are perpendicular or substantially perpendicular to the ground skids. Both cross pieces are attached to the ground skids by way of a saddle or “tee” attachment.
(iii) The promised utility
[25] The Judge also found (at paras. 215 to 223) that the promised utility of the ‘787 Patent was to reduce significantly the drawbacks of prior art involving (a) elevated acceleration factors upon landing (load factors); (b) difficult frequency adaptation with respect to ground resonance; and (c) high landing gear weight. In particular, the elimination of mechanical anti-ground resonance systems (i.e. dampers) was found to be an important advantage flowing from the design of the Moustache landing gear.
(iv) Claims construction
[26] Reviewing the patent through the eyes of the skilled person, the Judge found that the invention was principally embodied in claim 1 of the ‘787 Patent. He further found (at para. 212) that “what distinguishes the Moustache landing gear from a conventional landing gear is that ‘each of said skids has at the front an inclined transition zone with double curvature orienting itself transversely in relation to said longitudinal ground support surfaces, above the plane of the latter, the two transition zones together constituting, in this way, an integrated front cross piece, offset in relation to the front delimitation of the plane of contact of the longitudinal support surfaces of the skids on the ground’ (claim 1 of the ‘787 Patent).” [Emphasis added.]
[27] The Judge also concluded (at para. 228 of the Reasons), from the abundant expert testimony before him that the “double curvature” of the transition zone is obtained first by a “fairly large” bend when the skid’s cross piece bends upwards (C1 of the figures reproduced below), and then a second bend where the cross piece extends horizontally to meet the fuselage (C2 of the figures reproduced below) as shown in figures 4a, 4b and 10 of the ‘787 Patent here reproduced:
[28] He further found (at paras. 229 to 246) that all the elements of claim 1 of the ‘787 Patent were essential components of the invention, including the “double curvature” constituting “an integrated front cross piece”. He noted in particular (at paras. 234, 235 and 245) that a stiff saddle connection between the inclined transition zone and the longitudinal support surface of the skid on the ground was not part of the invention, concluding rather that the skilled person (at para. 245) “would have obviously appreciated that the manner in which loads are distributed through a stiff saddle connection will be different than the manner in which loads are distributed through the double curvature of the Moustache landing gear.”
[29] The Judge also found (at para. 247) that the other claims of the ‘787 Patent (claims 2 to 16) were all dependent claims, meaning that they build on the claims that come before, including notably claim 1.
Bell Helicopter’s Production landing gear does not infringe the ‘787 Patent
[30] Turning his mind to the issue of infringement, the Judge concluded from the evidence that Bell Helicopter’s Production landing gear did not infringe the ‘787 Patent. Though he considered whether the Production landing gear may be somewhat functionally equivalent to the landing gear disclosed in the patent, he was of the view (at para. 253), that “a patent is not infringed merely because the defendant’s product accomplishes the same function as the patented invention. What matters is whether the defendant’s product incorporated all the essential elements of the claim, not whether the parties’ products function similarly.”
[31] The Judge was satisfied (at para. 259) that since “the front cross piece of the Production gear is attached to the skids by means of saddle joints”, that “gear does not feature the ‘double curvature’, which, as aforementioned, is one of the essential elements of claim 1.” He further concluded (at para. 263) that “the Production gear does not have the integrated front cross piece required by claim 1” in that it “consists of a straight front cross piece connected to a straight skid via a saddle connection, with the skid continuing forward of the saddle and terminating in a ski tip.” Thus, a skilled person “would understand that the ‘787 Patent contrasts two different means of attachment, and thus that a cross piece attached with a saddle is, by definition, not integrated.”
Bell Helicopter’s Legacy landing gear infringes the ‘787 Patent
[32] The Judge however found otherwise with respect to Bell Helicopter’s Legacy landing gear. He concluded (at para. 264) that there was “no debate” on whether all the essential elements of claim 1 of the ‘787 Patent were found on the Legacy landing gear, and that there was “clear evidence” that the Legacy landing gear fell within the scope of claims 1 to 5, 7, 9, 10 and 15 of the ‘787 Patent.
[33] The issue, therefore, was whether Bell Helicopter could defeat the infringement action in relation to the Legacy landing gear by successfully raising a defence based (a) on the exception set out under subsection 55.2(1) of the Patent Act, R.S.C. 1985, c. P-4 (the regulatory or experimental exception), or (b) on a prior art defence.
[34] Subsection 55.2(1) of the Patent Act provides that it is not an infringement of a patent for any person to make, construct, use or sell the patented invention solely for uses reasonably related to the development and submission of information required under any law of Canada, a province or a country other than Canada that regulates the manufacture, construction, use or sale of any product. Bell Helicopter submitted to the Judge that twenty of the twenty-one Legacy landing gears manufactured were used for fatigue tests, drop tests and float kit development and testing, all in relation to certification. The remaining gear was used for a static display at a trade show.
[35] However, the Judge found (at para. 268) that, on the totality of the evidence, Bell Helicopter did not construct, use or sell the Legacy landing gear solely for uses reasonably related to the development and submission of information required by law, thus making it “ineligible for the regulatory or common law experimental exception.” He based this finding largely on his conclusion (at para. 267) that by soliciting orders for new helicopters with the Legacy landing gear, signing related agreements with clients, and promoting a new helicopter equipped with such a landing gear at trade shows, Bell Helicopter went well beyond the regulatory or experimentation exception.
[36] Bell Helicopter also submitted to the Judge that the ‘787 Patent had been disclosed by prior art, and it relied on Gillette Safety Razor Co. v. Anglo-American Trading Co. (1913), 30 R.P.C. (2d) 465 (HL) (“Gillette”). The Judge however rejected this defence on various grounds.
[37] First, he noted (at paras. 272-273) that in 2008 Bell Helicopter itself had promoted the Legacy landing gear as a “first time” design. Nevertheless, Bell Helicopter still maintained before the Judge that all the features of the Legacy landing gear could be found in prior art, particularly in prior art dealing with obstacle strike designs for landing gears and in certain NASA documents.
[38] The Judge reviewed (at para. 277) prior art publications dealing with obstacle strikes which were relied upon by Bell Helicopter and which he referred to as the “Obstacle strike documents”. Some of these documents were co-authored by Mr. Bharat P. Gupta, who had been working as a project engineer for Bell Textron in Texas. These documents disclosed a method whereby a skid landing gear could be protected from entanglement with suspended wires and cables by eliminating the forward protruding ski tubes (which the Judge called the “first concept”) or by placing fairings (which the Judge called the “second concept”).
[39] He found (at para. 280) the second concept (use of fairings) of no pertinence to the Gillette defence. As for the first concept, Bell Helicopter simply relied on drawings of helicopters equipped with a landing gear presenting no protruding skids at the front. The Judge found these drawings ambiguous and the accompanying text “unhelpfully terse” (at paras. 282 to 286). In any event, he found (at para. 287) that “the double curvature which is an essential element of claim 1 of the ‘787 Patent is missing” and that “[t]here is no transition zone within the meaning of the ‘787 Patent.” This led him to conclude (at para. 288) that Bell Helicopter “had failed to prove that the disclosure and the enablement conditions are met in the case of the Obstacle strike documents.”
[40] As for the other prior art relied upon by Bell Helicopter, and referred to as the NASA documents, the Judge found (at paras. 289-290) that Bell Helicopter had failed to establish that they were publicly available at the pertinent time. He further found (at paras. 291-292) that even assuming that these NASA documents were available, they failed to disclose the invention set out in the ‘787 Patent.
[41] The Judge then addressed the challenges to the ‘787 Patent which had been raised by Bell Helicopter on the grounds of anticipation, obviousness, insufficient specification and lack of utility.
The ‘787 Patent was not anticipated
[42] The Judge concluded (at paras. 50, 52 and 294) that Bell Helicopter’s challenge to the ‘787 Patent on the ground of anticipation was closely related to its Gillette defence which he had already rejected. He consequently dismissed Bell Helicopter’s anticipation submissions for the same reasons.
The ‘787 Patent is not obvious
[43] Using (at paras. 78-79) the four-step test set out in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61, [2008] 3 S.C.R. 265 (“Sanofi”), the Judge concluded (at para. 298) that none of the claims set out in the ‘787 Patent were obvious.
[44] Specifically, after describing the inventive concept of the ‘787 Patent (in para. 300), and reviewing the prior art which Bell Helicopter’s experts had submitted (in paras. 301 and 303 to 307), the Judge concluded (at para. 302) that none revealed the inventive concept contained in the patent. He also found that the landing gear disclosed by the patent “was neither known nor obvious” to a skilled person, and that invention was necessary to make the leap towards the inventive concept of the landing gear described in the ‘787 Patent. He further found (at para. 310) that the new landing gear disclosed by the patent was not “obvious to try”.
The ‘787 Patent provides sufficient disclosure of the invention
[45] The Judge then dealt with Bell Helicopter’s challenge to the ‘787 Patent on the ground that it did not disclose the invention sufficiently, contrary to paragraph 27(3)(b) of the Patent Act, and that it did not indicate the best mode contrary to paragraph 27(3)(c) thereof.
[46] Based on his assessment of the evidence from the expert witnesses (at paras. 316 to 319), the Judge found (at para. 315) that a skilled person who read the description set out in the patent and who wanted to produce the disclosed landing gear “would know to size the landing gear in relation to specific aircraft, would know to choose the best angle for inclination, and would not have difficulty determining whether the landing gear had best be attached to the fuselage at three or four points, in function of the weight of the aircraft.”
[47] The Judge also found (at paras. 322 and 329) that the ‘787 Patent disclosed the best mode of the invention and was clear enough to allow a skilled person “to understand the general functioning of the claimed invention and its main features.” He found that Figures 12 and 13 set out in the patent were particularly enlightening to show how the Moustache landing gear’s integrated front cross piece will contribute to the overall energy balance and will play, thanks to the bending of the transition zones, a leading role for the absorption of those forces generated during rough and running landings. These figures are reproduced below and show perspective views of the deformations of a conventional landing gear (left) as compared to the Moustache landing gear (right):
Fifteen of the claims in the ‘787 Patent are invalid for lack of evidence as to their utility
[48] After reviewing the evidence, the Judge found (at para. 350) that, on a balance of probabilities, Bell Helicopter did not prove that the invention set out in the ‘787 Patent did not work in the manner the specification promised it will do. He was particularly satisfied (at paras. 354 to 360) that in light of the actual testing that had been carried out, the inventors had clearly demonstrated the usefulness of the embodiment included in claim 15 of that patent in which the integrated front cross piece is offset forwards in relation to the front delimitation of the plane of contact of the longitudinal support surfaces of the skids on the ground.
[49] However, the Judge was not convinced that there was sufficient evidence or data to support a prediction with respect to the promised utility of the embodiment of the invention set out in claim 16 of the ‘787 Patent. That claim provides for an embodiment in which the integrated front cross piece of the landing gear is offset backwards in relation to the front delimitation of the plane of contact of the longitudinal support surfaces of the skids on the ground. That embodiment is illustrated in Figure 11e of the patent, reproduced below:
[50] The Judge found (at para. 363) that “there was 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.” He further found (at paras. 364 to 368) that there was no evidence that a backward inclination had any resonance advantage, nor any data or information upon which the inventors could have soundly predicted that the backward inclination embodiment procured the specific advantages claimed in the ‘787 Patent. He consequently concluded (at para. 369) that “[t]he 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 crosspiece which is offset backwards and in any event, there is no line of reasoning described in the ‘787 Patent in that respect.”
[51] Since the Judge had found (at para. 334) that claim 1 of the ‘787 Patent included the embodiment of the invention whereby the front cross piece is offset backwards, and since claims 2 to 14 were dependent on claim 1, the Judge concluded (at para. 371) that “[t]o the extent that claims 1 and 16 cover any embodiment whereby the front cross piece is offset backwards, all dependent claims, except claim 15, must be held invalid.” The Judge thus declared (at para. 371) “that claims 1 to 14 and claim 16 of the ‘787 Patent are invalid and void on the basis of lack of demonstrated utility (or sound prediction) and/or overbreadth.”
Remedies
[52] Turning to the remedies resulting from his findings, the Judge declared (at paras. 392 to 394) (a) claim 15 of the ‘787 Patent to be valid and enforceable; (b) claims 1 to 14 and 16 to be invalid, null, void and of no force and effect; (c) that Bell Helicopter infringed claim 15 by using of the Legacy landing gear; and (d) that Bell Helicopter did not however infringe claim 15 by using and selling the Production landing gear. The Judge (at para. 403) also granted an injunction enjoining Bell Helicopter from manufacturing, using or selling the Legacy landing gear or any similar landing gear, or any helicopter comprising such landing gear, until the ‘787 Patent expires or is otherwise found to be invalid. He also ordered (at para. 405) Bell Helicopter to destroy (subject to certain timelines) all the Legacy landing gears in its possession or under its authority or control.
[53] Turning to the issue of monetary compensation, the Judge denied to Eurocopter an election between damages or accounting for profits on the ground that such an election was not appropriate in light of the complexity of an accounting for profits in this case. The Judge found (at para. 412) “that a landing gear, although essential for the proper functioning and security of a helicopter, represents just a small part of the total costs of a helicopter” and that it was thus “questionable whether an accounting of profits should be permitted” in such circumstances (at para. 415). He also found (at para. 414) that Eurocopter could not recover profits flowing from the sale of the Bell 429 helicopter equipped with the non-infringing Production landing gear, and that any calculation of the profits gained from the 21 Legacy landing gears manufactured by Bell Helicopter (but never sold) would “be a highly complex and controversial exercise.”
[54] The Judge consequently found (at para. 416) that Eurocopter would be entitled to general compensatory damages, which may comprise the loss of profits from sales, or perhaps, loss of royalty payments as an alternative.
[55] The Judge however determined that punitive damages could also be awarded against Bell Helicopter. He found (at para. 420) that punitive damages can be “awarded when a party’s conduct has been malicious, oppressive and high-handed, or offends the court’s sense of decency, or represents a marked departure from ordinary standards of decent behaviour”, while recognizing that such damages “should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.”
[56] The Judge (at para. 425 of the Reasons) found inappropriate behaviour in Bell Helicopter’s “assertion that it had no knowledge whatsoever of the ‘787 Patent prior to May 2008” which was “simply not plausible and contrary to the evidence.” After carefully reviewing the available evidence (at paras. 426 to 432 and 437 to 442), and finding serious credibility issues with certain officers of Bell Helicopter (at para. 428), the Judge concluded (at para. 433) “that there is clear evidence of bad faith and egregious conduct on the part of Bell [Helicopter]. This is not a case where the infringement is small, trivial or isolated, or where the defendant is unsophisticated or ignorant. This is a case of wilful blindness or intentional and planned misappropriation of the claimed invention.” He also found (at para. 434) that Bell Helicopter actively promoted sales of the Bell 429 helicopter equipped with the Legacy landing gear, and showed “no remorse and offered no excuse for its behaviour.”
[57] He consequently concluded (at para. 436) that “[p]unitive damages are required in this case not only to punish Bell [Helicopter] but to deter others from acting in a similar manner.” He added (at para. 436) that “Bell [Helicopter]’s overall conduct is highly reprehensible and constitutes a callous disregard for the rights of Eurocopter who was forced to institute the present action. Bell [Helicopter] well knew how much time, research, testing and money expenditures were behind the development of the Moustache landing gear.”
[58] The Judge also dismissed Bell Helicopter’s submission that it was premature to make a determination to award punitive damages before the quantum of the general compensatory damages had been established. He found (at paras 446 and 449) that this case presented an unusual situation arising from the parties prior request that the determination of the quantum of damages be bifurcated, which joint request had been granted through an order issued on October 2, 2009.
[59] The Judge concluded (at paras. 450 to 453) that accepting Bell Helicopter’s submission would entail that the amount of ordinary damages would first have to be calculated, with the possibility of resulting appeals and cross-appeals leading to years of delays before the issue of the availability of punitive damages could be decided. He concluded (at para. 453) that this approach would “run contrary to the just, most expeditious and least expensive determination” of the proceedings.
[60] The Judge thus decided to declare (at paras. 456 and 459) that Eurocopter “is entitled to punitive damages as a result of the infringement by Bell [Helicopter] of the ‘787 Patent and the deliberate and outrageous conduct of Bell [Helicopter] in this case.” However, he left the quantum of the punitive damages to be determined with the quantum of the general damages in the subsequent hearings on quantum resulting from the bifurcation order.
THE ISSUES IN THIS APPEAL
[61] Both Bell Helicopter and Eurocopter allege that the Judge committed numerous errors in respect of a long list of issues. Their respective submissions are best reviewed by regrouping the issues under the following questions:
a. Did the Judge err in construing the common general knowledge?
b. Did the Judge err in construing the claims of the ‘787 Patent?
c. Did the Judge err in finding that the claims of the ‘787 Patent were not invalid on the ground of anticipation and in rejecting Bell Helicopter’s Gillette defence?
d. Did the Judge err in finding that the claims of the ‘787 Patent were not invalid on the ground of obviousness?
e. Did the Judge err in finding that claim 15 was not invalid on the ground of lack of demonstrated utility or of sound prediction? Did he err in finding otherwise with respect to claims 1 to 14 and 16?
f. Did the Judge err in finding that punitive damages could be awarded?
DID THE JUDGE ERR IN CONSTRUING THE COMMON GENERAL KNOWLEDGE?
[62] Bell Helicopter submits that the Judge erred in limiting the relevant common general knowledge to an orthogonal design skid type of landing gear. By so doing, Bell Helicopter submits that the Judge dismissed prior art that would have assisted him in properly construing the claims of the ‘787 Patent, and in determining whether the invention disclosed by that patent was anticipated or obvious.
[63] Determining what constitutes the common general knowledge is a factual finding which cannot be set aside on appeal unless a palpable and overriding error can be found: Apotex Inc. v. ADIR (sub. nom. Laboratoires Servier v. Apotex Inc.), 2009 FCA 222, 75 C.P.R. (4th) 443 at par. 73; General Tire & Rubber Company v. Firestone Tyre and Rubber Company Ltd. (1972), 17 R.P.C. 457 (UKCA) (“General Tire”) at p. 484.
[64] Common general knowledge does not amount to all information in the public domain. While the common general knowledge of the skilled person certainly includes knowledge of patents, it does not include knowledge of all patents: General Tire at pp. 481 to 484. Nor does it include knowledge of all journal articles or other technical information: British Acoustic Films Ltd. v. Nettleford Productions (1935), 53 R.P.C. 221, at p. 250, cited approvingly in General Tire at pp. 482-483.
[65] Rather, it is well established that the common general knowledge is limited to knowledge which is generally known at the relevant time by skilled persons in the field of art or science to which the patent relates: Sanofi at para. 37; Free World Trust v. Électro Santé Inc., 2000 SCC 66, [2000] 2 S.C.R. 1024 (“Free World Trust”) at para. 31. Thus, accordingly, the common general knowledge is with respect to the subset of patents, journal articles and technical information which is generally acknowledged by skilled persons as forming part of the common general knowledge in the field to which the patent relates: Abbot Laboratories v. Canada (Minister of Health), 2010 FCA 168, 85 C.P.R. (4th) 279 at para. 27; Janssen-Ortho Inc. v. Novopharm Ltd., 2007 FCA 217, 59 C.P.R. (4th) 116 at para. 25 (citing factors developed in Janssen-Ortho Inc. v. Novopharm Ltd., 2006 FC 1234); Eli Lilly and Company v. Apotex Inc., 2009 FC 991, 80 C.P.R. (4th) 1 at paras. 95 to 100, aff’d 2010 FCA 240, 90 C.P.R. (4th) 327.
[66] In this case, the Judge found that the field of common general knowledge from which the skilled person would draw upon was that of a “conventional landing gear”, which he defined at paras. 209 and 210 of the Reasons as a skid-type landing gear of orthogonal design, with parallel front and rear cross pieces that are either perpendicular or substantially perpendicular to the ground skids, and attached to the skids by way of a saddle or “tee”, as illustrated in the Reasons at para. 209, which illustration is reproduced above at para. 24.
[67] The Judge did not state expressly with which expert he agreed in defining as he did the field of the patent and the common general knowledge which relates to that field. However, he is not required to do so. For an appellate court reviewing evidentiary findings of a trial judge, the applicable standard is not whether the judge described every minute detail from the evidence on which his findings rest, but rather whether the trial judge’s reasons show that the judge has seized the substance of the matter: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 43; Corlac Inc. v. Weatherford Canada Ltd., 2011 FCA 228, 95 C.P.R. (4th) 101 (“Weatherford”) at para. 87.
[68] In this instance, the Judge met that standard. He clearly considered all of the expert reports (at para. 141 of the Reasons), and he carefully described (at paras. 101 to 153 of the Reasons) his impressions of those reports. Further, it is apparent from the evidence that, with respect to the common general knowledge, the Judge relied on the expert report of Mr. Andrew Logan dated August 31, 2010, since all the characterizations set out at paras. 209 and 210 of the Reasons are found at paras. 55 to 57 of this expert’s report, reproduced in the Appeal Book (“AB”), Vol. 4 Tab 62 at pp. 919-920.
[69] Furthermore, in his various reports, Mr. Logan discarded the prior art referred to by Bell Helicopter, either on the ground that the documents referred to did not involve helicopters with ground resonance problems, belonged to technical fields other than landing gears, or were otherwise irrelevant: Logan’s response to validity issues, served November 12, 2010, at paras. 104 to 110 (reproduced in AB Vol. 9 Tab 113 at pp. 2199-2200); Logan’s rebuttal expert report, served December 10, 2010, at paras. 6 to 11 (reproduced in AB Vol. 7 Tab 93 at pp. 1802 to 1805).
[70] In defining the scope of the common general knowledge of the skilled person, the Judge thus relied on the expertise of Mr. Logan, preferring his expert conclusions over those submitted by the experts retained by Bell Helicopter. The Judge was entitled to rely on one expert over another in defining the common general knowledge. An appellate court is only permitted to interfere with factual findings of a trial judge where it is shown that he committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 55, referring approvingly to H. L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paras. 4 and 56-57. Where, as in this case, there is evidence to support a finding or inference drawn by a trial judge, an appellate court will be hard pressed to find a palpable and overriding error: F.H. v. McDougall, above, at para. 55.
[71] Bell Helicopter is unsatisfied with the result of the Judge’s analysis of the expert evidence with respect to the common general knowledge and it is, in essence, asking this Court to reassess that evidence so as to substitute the findings of the Judge by our own findings. However, appellate courts do not “retry” or “rehear” cases: H.L. v. Canada (Attorney General), above, at para. 52.
[72] In conclusion, Bell Helicopter has not convinced me that the Judge committed a palpable and overriding error in defining the common general knowledge as he did, or in overlooking or excluding prior art as part of that common general knowledge.
DID THE JUDGE ERR IN CONSTRUING THE CLAIMS OF THE ‘787 PATENT?
[73] Claims construction is a question of law: Whirlpool Corp. v. Camco Inc., 2000 SCC 67, [2000] 2 S.C.R. 1067 (“Whirlpool”) at para. 76.
[74] As noted in Whirlpool at para. 53, the words used in a patent must be looked at and understood “through the eyes and with the common knowledge of a worker of ordinary skill in the field to which the patent relates.” This enables the reader to appreciate the nature and description of the invention on a technical level. Consequently, in construing the claims, a judge may be assisted by expert witnesses. However, a judge is not bound by the opinion of any expert. A judge’s assessment of the expert evidence will not be reversed on appeal absent palpable and overriding error: Halford v. Seed Hawk Inc. 2006 FCA 275, 54 C.P.R. (4th) 130 at para. 11; Weatherford at para. 24.
First issue: Did the Judge err in holding that the rear cross piece of the landing gear disclosed in the ‘787 Patent must be vertical or substantially vertical?
[75] Bell Helicopter holds that though the Judge’s construction of the ‘787 Patent was largely correct, he nevertheless erred in imposing limitations on the rear cross piece of the landing gear disclosed in the patent. This erroneous cons