Bombardier Recreational Products Inc. v. Arctic Cat Inc.

Bombardier Recreational Products Inc. v. Arctic Cat Inc.
Court (s) Database
Federal Court Decisions
Date
2017-02-24
Neutral citation
2017 FC 207
File numbers
T-2025-11
Notes
A correction was made on March 15th, 2017.
Decision Content
Date: 20170224
Docket: T-2025-11
Citation: 2017 FC 207
Ottawa, Ontario, February 24, 2017
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
BOMBARDIER RECREATIONAL PRODUCTS INC.
Plaintiff/Defendant by Counterclaim
and
ARCTIC CAT INC. AND ARCTIC CAT SALES INC.
Defendants/Plaintiffs by Counterclaim
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued February 24, 2017)
TABLE OF CONTENTS
I. Introduction 5
II. Description of the Patents 8
A. The 106 Patent 8
(1) Disclosure 10
(2) Claims 16
B. The 813 Patent 19
(1) Disclosure 20
(2) Claims 20
C. The 964 Patent 24
(1) Disclosure 25
(2) Claims 30
D. The 264 Patent 36
(1) Disclosure 37
(2) Claims 42
III. The Evidence / Witnesses 48
A. BRP’s witnesses 48
(1) Jean-Yves LeBlanc 48
(2) José Boisjoli 50
(3) Bruno Girouard 52
(4) Berthold Fecteau 59
(5) Jérôme Wubbolts 62
(6) Peter Watson 64
(7) Steward Strickland 67
(8) Jonathan Cutler 70
(9) Robert Strauss 79
(10) Bernard Guy 81
B. AC’s witnesses 86
(1) Brad Darling 86
(2) Ken Fredrickson 91
(3) Brian Sturgeon 93
(4) Douglas Wolter 95
(5) Troy Halvorson 97
IV. Construction of the claims 104
A. The person of skill in the art (POSITA) 104
B. Common general knowledge 106
C. Construction of the Patents-in-suit 109
(1) Rider Position Patents 115
(2) Frame Construction Patent (the 264 Patent) 131
V. Infringement 142
A. The law 142
B. 264 Patent 144
C. The Rider Forward Patents 148
(1) The 106 Patent 149
(2) The 813 Patent 150
(3) The 964 Patent 152
(4) Seat disposed on the tunnel 154
(5) The measurements 155
VI. Validity of Rider Position Patents 179
A. Anticipation: The Law 181
B. Anticipation: application to the facts 188
C. Obviousness: the law 201
D. Obviousness: application to the facts 205
E. Adequate disclosure: indefiniteness and insufficiency 212
F. The 964 Patent: other invalidity arguments 234
(1) Material misrepresentation 234
(2) The 964 Patent is anticipated by the 106 Patent and the 813 Patent 236
(3) Prior public disclosure 237
VII. Objections 238
A. Reply evidence and documents not listed in affidavits of documents 239
B. Questions of law and testing 240
VIII. Conclusion 246
PUBLIC JUDGMENT AND REASONS
I. Introduction
[1] This is an action for infringement under the Patent Act (RSC, 1985, c P 4) [Patent Act] launched by Bombardier Recreational Products Inc., a manufacturer of snowmobiles with its headquarters in Canada, against another manufacturer of snowmobiles, Arctic Cat, Inc., and its wholly-owned subsidiary, Arctic Cat Sales Inc., which is responsible for marketing and sales, as well as service activities, for Arctic Cat snowmobiles.
[2] Bombardier Recreational Products Inc. (BRP or the Plaintiff) is incorporated pursuant to the Canada Business Corporations Act (RSC, 1985, c C-44). It manufactures and sells, among other recreational products, snowmobiles under the trade-mark “Ski-Doo”. Its head office remains in Valcourt, Quebec, where it started its operations. From a division of Bombardier Inc. that manufactured and sold snowmobiles, Bombardier Recreational Products Inc. was spun off Bombardier Inc. in 2003. It now operates on its own as a corporate entity.
[3] Similarly, the head office of the Defendants, both corporations incorporated under laws of the State of Minnesota, has been and continues to be located in Thief River, in the State of Minnesota. They are also in the business of manufacturing and selling snowmobiles. Indeed, the evidence at trial showed that the parties compete in the same market together with two other manufacturers, Yamaha and Polaris.
[4] It is not an overstatement to say that the competition between the four main manufacturers in North America is fierce in a market that has been referred to as being “mature”. It appears that the sales of snowmobiles have been declining in the last few years.
[5] Bombardier Recreational Products Inc. takes to court Arctic Cat, Inc. and Arctic Cat Sales Inc. (AC or the Defendants) because it is alleged that AC has infringed four Patents owned by BRP. They are Canadian Patents 2,293,106, 2,485,813, 2,411,964, and 2,350,264. They will be referred to herein as the “106 Patent”, the “813 Patent”, the “964 Patent” and the “264 Patent”.
[6] AC does not only deny in this action infringing the four Patents, but it also asserts the invalidity of each of the Patents for a variety of reasons: anticipation, obviousness, double patenting, indefiniteness, lack of utility, claiming a desired result, claims that are broader than the invention made, and material misrepresentation. As a result, AC counterclaims: it seeks a declaration that the asserted claims of the four Patents are invalid, making them void and of no effect.
[7] This trial also included the evidence about the remedies sought, assuming that there would be a finding of infringement of one or many of the claims asserted by BRP, with the claims being ruled to be valid. BRP is asking for:
A declaration that the four Patents have been infringed by AC;
A declaration that the said four Patents are valid; I note that there is no allegation that BRP does not own the Patents-in-suit;
An order, in the nature of a permanent injunction, restraining AC from infringing all and any of the four Patents-in-suit as well as selling, making, using or distributing in Canada any snowmobile or component thereof that would infringe any of the four Patents; furthermore, the order sough would restrain AC from inducing the sale, the order for sale, the fabrication, the construction, the use or distribution in Canada of a snowmobile or component thereof infringing any of the four Patents;
Although the Plaintiff is not seeking an accounting of profits by the Defendants, it seeks damages that include an assessment of profits made by AC for selling snowmobiles that would have been sold by BRP but for the infringement of patents. As for the remaining snowmobiles sold by AC using the technology developed and patented by BRP, a reasonable royalty is sought. BRP is not claiming any more punitive damages, but pre-judgment and post-judgment interest are of course asked for by the Plaintiff;
For its part, AC calls for a declaration that it did not infringe any of the Patents or that the Patents are invalid in case some claims were ruled to have been infringed;
Both parties are claiming costs at a higher level than that provided for at Rule 407 of the Federal Courts Rules (SOR/98-106), as amended. It was decided that more complete representations will be made on the costs issue once judgment has been rendered. Accordingly, this judgment will not deal with the issue of costs;
Out of 247 claims coming from the four Patents-in-suit, 56 have been asserted originally by BRP covering some 378 (there continued to be uncertainty as to how many models were captured by the action until the end when counsel for BRP advanced the number 378) snowmobile models manufactured and sold by AC in Canada between the model year 2007 and 2015. This law suit is concerned with some 44 000 snowmobiles, colloquially referred to as “sleds”.
II. Description of the Patents
[8] The four Patents at issue in this proceeding cover some 247 claims, of which 49 claims remain asserted following the close of the trial. Three of the Patents (the 106, the 813, and the 964) relate to similar purported inventions, essentially new configurations for a snowmobile, bringing the rider in a more forward position when sitting on the snowmobile, while the fourth Patent (the 264) relates to a frame assembly to be used in the construction of snowmobiles.
A. The 106 Patent
[9] The 106 Patent is entitled “Snowmobile” (“Motoneige”) and was filed on December 23, 1999. It lists Berthold Fecteau and Bruno Girouard as inventors. The Patent claims a Canadian priority date of December 23, 1998 (from patent application 2,256,944) and a United States priority date of November 26,1999 (from application 60/167, 614); however, during the course of this litigation, the parties came to an agreement to rely on the American priority date. In fact, nothing rides in the end on these various dates. The Patent was laid open to public inspection on June 23, 2000. The 106 Patent was issued on April 14, 2007, and is in the name of Bombardier Recreational Products Inc.
[10] The 106 Patent makes 80 claims, of which the following four claims remain asserted in the end in this case: 1, 7, 27, and 77. Prior to the claims, the Patent provides a description of the invention, referred to as the disclosure.
[11] The Patent, as well as the 813 and 964 Patents could hardly have been clearer. The first sentence announces that “(t)he present invention concerns the overall design and construction of a snowmobile.” It is to be constructed such that the steering control position will be different from the one traditionally found on snowmobiles, where the rider was in an upright position located toward the rear of the vehicle. Being positioned further from the centre of gravity of the snowmobile, the driver would feel strongly the bumps over which the vehicle would be passing; an improved position would minimize the discomfort perceived as the vehicle would travel over uneven terrain.
[12] The conventional design of a snowmobile would be changed with the result that the rider is repositioned. The 106 Patent would therefore seek to reconfigure the snowmobile such that the rider would have to assume a new position. The Patent addresses the position that the rider would have to take in the view of the new configuration that would force the rider to sit closer to the centre of gravity. Measurements involving the centers of gravity of the snowmobile, the snowmobile together with the rider (as a “system”) and the center of gravity of the rider are provided and included in the asserted claims.
[13] For instance, claims 1 and 7 are dealing with the distance between the center of gravity of the snowmobile and the center of the gravity of the snowmobile together with the rider. Claim 1 speaks of a distance of 0 cm to 14 cm (inclusive) while Claim 7 situates the distance at 2 cm to 12 cm (inclusive). Claim 27 is interested by the distance between the forward-most drive track axle and the rider’s center of gravity. Claim 77 deals with the angle calculated by having a line go through the center of gravity of the rider, and one going through the center of gravity of the system (center of gravity of the snowmobile with rider). These two lines will form an angle with horizontal that will be between 45º and 75º inclusive.
[14] The claims are organized in the same manner. They are cascading from an independent claim that speaks of “the snowmobile constructed and arranged such that” the measurements and angles will result.
(1) Disclosure
[15] The invention described in the 106 Patent is said to be a “snowmobile where, among other features, the steering control position, the seating position, and the position of the footrests are arranged in relation to one another so that the rider’s center of gravity is closer to the center of gravity of the vehicle than on a conventional snowmobile” (106 Patent, page 1). The new configuration is said to improve over a conventional snowmobile by repositioning the rider to minimize the transfer of forces as the snowmobile passes over bumpy terrain.
[16] The Patent states that a person skilled in the art would understand that a snowmobile has one centre of gravity without the rider and (usually) a different centre of gravity with the rider included. The rider also has its own centre of gravity.
[17] As already indicated, the Patent describes certain distances which can be measured on a snowmobile by comparing vertical lines passing through certain points on the snowmobile: a distance between a vertical line passing through the centre of gravity of the snowmobile without the rider and a vertical line passing through the centre of gravity of the snowmobile with the rider (referred to as distance “a”), a distance between a vertical line passing through the forward-most drive axle and a vertical line passing through the centre of gravity of the rider (referred to as distance “z”), a distance between a vertical line passing through the centre of gravity of the snowmobile with the rider and a vertical line passing through the centre of gravity of the rider (referred to as distance “x”), and a distance ” between a vertical line passing through the centre of gravity of the snowmobile without the rider and a vertical line passing through the centre of gravity of the rider (referred to as distance “y”). For each distance, the Patent describes a range of preferred lengths in centimetres.
[18] The Patent describes a series of angles which can be measured on a snowmobile by comparing a line passing through two points on the vehicle with a horizontal line: an angle from a line passing through the centre of gravity of the snowmobile without the rider and the center of gravity with the rider (referred to as angle “λ”), an angle from a line passing through the forward-most drive track axle and the centre of gravity of the rider (referred to as angle “π”), an angle from a line passing through the centre of gravity of the snowmobile without the rider and the center of gravity of the rider (referred to as angle “ω”), and an angle from a line passing through the centre of gravity of the snowmobile with the rider and the centre of gravity of the rider (referred to as angle “θ”). For each angle, the Patent describes in a cascading way a range of preferred sizes in degrees.
[19] The Patent describes certain components on a snowmobile that provides certain positions on the vehicle: “The steering device defines a steering position, the seat defines a seat position, and the footrests define a footrest position” (106 Patent at page 3). It then provides certain angles by comparing lines passing through these components: an angle referred to as “α” is formed from a line passing though the seat position and steering position and a line passing through the seat position and footrest position, an angle referred to as “β” is formed from a line passing though the footrest position and the steering position and a line passing through the footrest position and the seat position, and an angle referred to as “γ” is formed from a line passing through the footrest position and the steering position and a line passing through the steering position and the seat position. For each angle, the Patent describes a range of preferred sizes in degrees. The Patent also provides that the relationship for these angles satisfies α ≥ β ≥ γ and that it satisfies angle α ≈ 2.5γ.
[20] The Patent also describes that an angle (referred to as angle “ϕ”) formed by comparing a line passing through the steering position and the seat position with the horizontal. The Patent provides preferred measurements for angle ϕ in degrees. The Patent also describes that the snowmobile has a steering shaft disposed over the vehicle’s engine at an angle referred to as ε; preferred measurements for angle ε are provided by the Patent. The Patent further describes an angle referred to as μ, formed by comparing a line passing through the steering position and the seat position with a line passing through the seat position and the top of the windshield. Preferred measurements for μ are provided in the Patent.
[21] The Patent teaches that the invention can feature a frame and a seat disposed on the frame, a windshield disposed forward of the steering device, a drive axle disposed on the frame, a steering device disposed on the frame, right and left footrests disposed below the seat. The Patent provides for a distance b, which is described as being between vertical lines passing through the steering device and the seat. The Patent describes preferred lengths for distance b in centimetres. It also provides for the snowmobile’s footrests to be disposed at angle Δ, for which preferred angles are provided in degrees.
[22] The Patent describes 20 Figure drawings, which are included at the end of the Patent. They purport to illustrate both a conventional snowmobile as well as the snowmobile made according to the teachings of the Patent from side, top, and perspective views, calling out distances a, x, y, z, b, and angles λ, π, ω, θ, ϕ, Δ, μ, ε as well as the calculations of αmin and αmax, βmin and βmax, and γmin and γmax. It also provides two illustrations, Figures 19 and 20, which purport to show front and side views of the standard rider.
[23] The figures provide illustrations as to the difference between the conventional snowmobile and the new configuration obtained through the positioning of the standard rider. In particular, figure 3 seeks to compare the old with the new configuration in one illustration.
[24] The Patent describes preferred embodiments for the invention; however, it notes that the construction of these elements is “readily known to those skilled in the art” and, as such, it only provides a “description of those elements required for an understanding of the present invention” (106 Patent, page 7).
[25] The Patent provides particular directions on how the “average rider” is placed on a conventional snowmobile:
When seated, the average rider 26 will be positioned so that his hands grasp steering device 32 at steering position 36. Moreover, rider 26 will be seated so that the center of his torso 42 is above seat position 30. When seated in this manner, the rider’s feet 46 naturally will be placed at footrest position 38. Positioned in this manner, the rider’s center of gravity 40 will be located just forward of the rider’s stomach, offset from the center of the rider’s torso 42. (The rider’s center of gravity 40 is offset forwardly from the center of the rider’s torso 42 because the rider’s arm and legs are disposed forward of the rider’s torso 42 when rider 26 is in the driving position.) (106 Patent, page 8)
The Patent indicates that the result of the rider being in this position on the conventional snowmobile is a “situation where rider 26 is seated in a relatively upright position toward the rear of the vehicle” (106 Patent, page 8).
[26] The Patent then provides directions on how the rider is to be placed on the invention snowmobile :
When rider 126 is on snowmobile 110, the rider will be positioned on seat 128 so that he occupies seat position 130. Seat position 130 is the point at which the weight of the rider 126 is exerted on the seat 128 while seated in a biomechanically neutral position on the seat with its feet disposed on the footrest at the footrest position and its hands disposed on the steering device at the steering position, with the snowmobile being steered straight and headed straight on flat terrain and being in running condition. (106 Patent, page 9)
It notes that the person skilled in the art at whom the Patent is directed would understand that a biomechanically neutral position is “one wherein each of the opposing muscles of the major supporting muscle group that maintain the rider in his position are in equilibrium” (106 Patent, page 9). The Patent provides some guidance about the standard rider and how he is to be used to determine certain positions on the snowmobile:
In cases of difficulty [determining the seating position], it may be determined by taking a 50-percentile United States human male (having a weight of 78 kilograms and dimensions show in FIGS. 19 and 20), placing him on the snowmobile in the biomechanically neutral position shown in the Figures (i.e., that approximate the position of a rider a few seconds after starting the vehicle, heading straight ahead on flat terrain), and drawing a line from his shoulder through his hip. (For purposes of this discussion, a standard person is illustrated in FIGS. 19 and 20.) The intersection of that line with the seat may be considered to be the seat position 130. (106 Patent, pages 9-9a)
As is the case with the seating position 130, the steering position 136 may vary depending on the size and shape of the hands of the rider 126. In cases of difficulty, the steering position 136 may be determined by placing the hands of the same 50-percentile rider described above, placing it on the steering device 132 in normal operating position. The steering position 136 will be the intersection of the center of the palm of the hands of the rider 126 and the steering device 132. (106 Patent, page 10)
[27] The Patent declares that the invention has a number of advantages, namely that the new rider position permits the rider to more easily raise himself to a standing position from the seat using primarily the strength of his legs rather than by pulling himself up using the handlebars and that placing the rider’s centre of gravity closer to that of the vehicle helps to minimize the effect of bumps and terrain on the rider. Further advantages are described, including that the windshield better protects the rider’s head from temperature and noise by being within the laminar air flow region, the rider position provides him with an improved view of the ground in front of the snowmobile, the rider is less likely to hit his knees with the steering device, and there is an improved ride for additional riders who are also closer to the vehicle’s centre of gravity.
[28] Prior to setting out the claims, the Patent indicates that while it makes reference to preferred embodiments of the invention, the person skilled in the art at whom the Patent is directed will understand that various changes and substitutions may be made without departing from the invention or its teachings.
(2) Claims
[29] The Patent then sets out 80 claims, eight of which are independent claims and the remainder depend on at least one other claim. As previously noted, only four claims remain directly asserted in this proceeding for the 106 Patent: 1, 7, 27, and 77.
(a) Claim 1
[30] Claim 1 reads as follows
A snowmobile, comprising:
a frame including a tunnel;
an engine disposed on the frame;
a drive track disposed below the tunnel and being operatively connected to the engine for propulsion of the snowmobile;
a straddle seat disposed on the tunnel above the drive track and rearward of the engine, the seat being dimensioned to support a standard rider having dimensions and weight of a 50-percentile human male;
two skis disposed on the frame;
a steering device disposed on the frame forward of the seat, the steering device being operatively connected to the two skis for steering the snowmobile, the steering device having a steering position;
a pair of footrests, one footrest being disposed below each side of the seat, each footrest being dimensioned and arranged with respect to the seat and the steering device to support one of the standard rider’s feet thereon, the footrests having a footrest position;
the snowmobile constructed and arranged such that, when the standard rider is in a standard position defined as the standard rider straddling and being seated in a biomechanically neutral position on the seat with its feet disposed on the footrests on the footrest position and its hands disposed on the steering device on the steering with the snowmobile being steered straight on flat terrain and being in running condition and full of fuel, the snowmobile has a first center of gravity without the standard rider and a second center of gravity with the standard rider and a distance between a vertical line passing through the first center of gravity and a vertical line passing through the second centre of gravity is between 0 cm and 14 cm inclusive.
(b) Claim 7
[31] Claim 7 depends on Claim 1 but specifies that the distance between the centres of gravity be between 2 and 12 cm.
(c) Claim 27
[32] Claim 27 is a dependent claim, referring to the snowmobiles described in the un-asserted Claims 20 through 25. The independent claim on which Claim 27 is based is Claim 20, which is substantially similar to Claim 1 but with the following changes. Claim 20 adds an element to the snowmobile, namely “a forward-most drive track axle disposed on the frame.” It also changes the final element of the snowmobile to require that the snowmobile be “steered straight and heading straight on flat terrain” (as opposed to Claim 1’s requirement for “the snowmobile being steered straight on flat terrain”). Finally, Claim 20 does not speak to the centre of gravity of the snowmobile but focuses on the centre of gravity of the standard rider:
… the standard rider has a center of gravity and a distance between a vertical line passing through the forward-most drive track axle and a vertical line passing through the center of gravity of the standard rider is between 15 cm and 65 cm inclusive.
[33] Claims 21 through 25 add the following element to the snowmobile described in Claim 20:
… a longitudinal centerline and a seat position is defined on the seat with respect to the standard rider in the standard position, and the seat position is a point along the longitudinal centerline wherein a distance between a vertical line passing through the point and a vertical line passing through the steering position [is between 40 and 90 cm, between 50 and 80 cm, between 60 and 80 cm, exactly 65 cm, or exactly 70 cm].
[34] To the snowmobiles described in Claims 20 through 25, the asserted Claim 27 specifies that “the distance between the vertical line passing through the forward-most drive track axle and the vertical line passing through the center of gravity of the standard rider is between 35 cm and 55 cm inclusive.”
(d) Claim 77
[35] The final asserted claim, Claim 77, is also a dependent claim, referring to the snowmobiles described in the un-asserted Claims 71 through 76. The independent claim on which Claim 77 is based is Claim 71, which is also substantially similar to Claim 1 but with the following changes. Like Claim 27, the snowmobile must be “steered straight and heading straight on flat terrain.” The centres of gravity at issue in Claim 71 are:
… the snowmobile has a center of gravity with the standard rider and the standard rider has a center of gravity and a line passing through the center of gravity of the snowmobile with the standard rider and the center of gravity of the standard rider forms an angle with horizontal that is between 35° and 84° inclusive.
[36] Claims 72 through 76 add the same element to the snowmobile described in Claim 71 as do claims 21 to 25:
… a longitudinal centerline and a seat position is defined on the seat with respect to the standard rider in the standard position, and the seat position is a point along the longitudinal centerline wherein a distance between a vertical line passing through the point and a vertical line passing through the steering position [is between 40 and 90 cm, between 50 and 80 cm, between 60 and 80 cm, exactly 65 cm, or exactly 70 cm].
[37] To the snowmobiles described in Claims 71 through 76, the asserted Claim 77 specifies that the angle be between 45° and 75°.
B. The 813 Patent
[38] The 813 Patent is a divisional of the application that became the 106 Patent; accordingly, it shares the filing date, publication date, and priority date information with the 106 Patent, including the agreement to use the American priority date. The Patent, also entitled “Snowmobile” (“Motoneige”), lists Bruno Girouard and Berthold Fecteau as inventors. The Patent was issued on March 27, 2007. Bombardier Recreational Products Inc. is the listed owner of the Patent.
(1) Disclosure
[39] The 813 Patent shares the same disclosure as provided in the 106 Patent, as set out above.
(2) Claims
[40] The Patent makes 75 claims, five of which are independent and the remainder depend on at least one other claim. Claims 37, 38, 48, and 73 remain directly asserted.
(a) Claim 37
[41] Claim 37 is a dependent claim, referring to Claims 1 through 27 and Claim 36. The independent claims Claim 37 relies on Claims 1, 9, 14, 19, and 27, all of which are the same except for a single element of the snowmobile described.
[42] Claim 1 reads as follows
A snowmobile, comprising:
a frame including a tunnel;
an engine disposed on the frame;
a drive track disposed below and supported by the tunnel and operatively connected to the engine for propulsion of the snowmobile;
two skis disposed on the frame, each via a front suspension;
a straddle seat disposed on the tunnel above the drive track and rearward of the engine, the seat being dimensioned to support a standard rider having the dimensions and weight of a 50-percentile human male;
a pair of footrests supported by the frame to support the rider’s feet, the footrests having a footrest position; and
a steering device disposed on the frame forward of the seat, the steering device being operatively connected to the two skis for steering the snowmobile, the steering device having a steering position;
the snowmobile constructed and arranged such that when the standard rider is in a standard position defined as the standard rider straddling and being seated in a biomechanically neutral position on the seat with its feet disposed on the footrests on the footrest position and its hands disposed on the steering device on the steering position with the snowmobile being steered straight and headed straight on flat terrain and being in running condition, a seat position is defined on the seat with respect to the standard rider, and
a line passing through the seat position and the steering position forms angle α with a line passing through the seat position and the footrest position,
a line passing through the footrest position and the steering position forms angle β with the line passing through the footrest position and the seat position,
the line passing through the footrest position and the steering position forms angle γ with the line passing through the steering position and the seat position, and
angle α is between 63° and 152°, angle β is between 16° and 84°, and angle γ is between 11° and 42°.
[43] Claims 2 through 8 depend on the snowmobile described in Claim 1. Claims 2 through 4 provide alternate ranges in degrees for angles α, β, and γ. Claim 5 requires a distance between vertical lines passing through the steering and seat positions to be between 40 and 90 cm. Claim 6 adds reference to a plurality of axles about which the drive track is disposed and requires that the steering position be forward of the forward-most axle. Claim 7 adds left and right sideboards and provides that the footrests be the forward-most portions of the sideboards. Claim 8 further adds a pair of toeholds, positioned above the footrests.
[44] The independent Claim 9 is the same as Claim 1 except that angles α, β, and γ are not described with angles in degrees, but instead with a requirement that they satisfy the relationship α ≥ β ≥ γ. Claims 10 through 13 depend on the snowmobile described in Claim 9 and provide the same requirements for the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of axles with the steering position forward of the forward-most drive track axle, sideboards, and toeholds).
[45] The independent Claim 14 is the same as Claim 1 except that angles α, β, and γ are not described with angles in degrees, but instead with a requirement that α ≈ γ. Again, Claims 15 through 18 depend on the snowmobile described in Claim 9 and provide the same requirements for the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of axles with the steering position forward of the forward-most drive track axle, sideboards, and toeholds).
[46] The independent Claim 19 is the same as Claim 1 except that angles α, β, and γ are not described. Rather the claim provides that “a line passing through the seat position and the steering position forms an angle ϕ with horizontal that is between 15° and 51°.” Claims 20 through 22 provide alternate ranges in degrees for angle ϕ. Claims 23 through 26 provide the same requirements for the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of axles with the steering position forward of the forward-most drive track axle, sideboards, and toeholds).
[47] The independent Claim 27 is the same as Claim 1 except that angles α, β, and γ are not described. Rather the claim provides that “a distance between vertical lines passing through the steering position and the seat position is between 40 and 90 cm.”
[48] Claim 36 depends on Claims 8, 13, 18, and 26, which are the claims adding toeholds to the snowmobile. Claim 36 provides that the “toeholds are over the feet of the standard rider when the standard rider is in the standard position.”
[49] As previously stated, the asserted Claim 37 relies on any of Claims 1 through 27 and 36 with additional requirements that “the snowmobile is full of fuel, the snowmobile has a first center of gravity without the standard rider and a second center of gravity with the standard rider and a distance between a vertical line passing through the first center of gravity and a vertical line passing through the second center of gravity is between 0 cm and 14 cm inclusive.”
(b) Claim 38
[50] The asserted Claim 38 relies on Claim 37 and, as such, relies on any of Claims 1 through 27 and 36. It requires the distance between the centres of gravity of the snowmobile with and without the standard rider to be between 2 and 12 cm.
(c) Claim 48
[51] The asserted Claim 48 relies on Claim 46. Claim 46 relies on any of Claims 1 through 27 and 36 with the addition of a forward-most drive track axle disposed on the frame and a requirement that a vertical line passing through that axle and a vertical line passing through the centre of gravity of a standard rider have a distance between them of between 15 and 65 cm.
[52] Claim 48 narrows the distance between the vertical lines passing through the forward-most drive track axle and the standard rider’s centre of gravity to between 25 and 55 cm.
(d) Claim 73
[53] The asserted Claim 73 relies on Claim 72. Claim 72 relies on any of claims 1 through 27 and 36 with the addition of requirements that the snowmobile be full of fuel and that “a line passing through the center of gravity of the snowmobile with the standard rider and the center of gravity of the standard rider forms an angle with horizontal that is between 35° and 84° inclusive.”
[54] Claim 73 narrows the angle formed by the line passing through the centres of gravity of the snowmobile and the standard rider with horizontal to between 45° and 75°.
C. The 964 Patent
[55] The 964 Patent is entitled “Snowmobile with Active Rider Positioning” (“Motoneige à positionnement actif du conducteur”). The patent application was filed on November 15, 2002, and laid open for publication on November 11, 2003. It does not claim priority from any other application. Berthold Fecteau, Peter Watson, and Bruno Girouard are the listed inventors. The 964 Patent was issued on July 26, 2005. Bombardier Recreational Products Inc. is the listed owner of the Patent.
[56] The 964 Patent has 49 claims, of which 16 remain asserted: 1, 4, 6, 8, 13, 15, 16, 20, 24, 26, 27, 35, 37, 40, 42, and 48. The Patent includes 7 figures that seek to illustrate the difference between the invention and the prior art, as well as providing the measurements of the standard rider used to configure the new snowmobile.
(1) Disclosure
[57] The invention in the 964 Patent, as with the other two Patents, is said to concern the overall design and construction of a snowmobile and more particularly the construction and arrangement of various components that determine the position of a rider on the snowmobile. This Patent will use the relative positioning of the knees, ankles and hips of a standard rider. Thus, when seated and holding the steering device as positioned by the new configuration, the knees will be in front of the ankles but below the hips. The Patent provides that such positioning will facilitate absorbing bumps and allows the rider to actively position on the snowmobile. When compared to the prior art, the ankles are presented as being in line with the knees and for the knees to be higher than the hips.
[58] The Patent states that all dimensions are based on a standard rider which is defined as a “50th-percentile United States human male who weighs 78 kilograms (174.8 lb.) and has the dimensions illustrated in FIGS. 6 and 7.” The Patent indicates that it would be obvious to a person of ordinary skill in the art that Figures 6 and 7 show dimensions “in centimeters with the middle value representing the 50th-percentile U.S. human male.” There is said to be a “standard position” for the standard rider, in which “the rider is seated on the seat, is holding the steering device with his hands, and has his feet on the footrest.” This standard position is said to be shown in the Figures accompanying the Patent and represent a position taken “a few seconds after starting the vehicle, heading straight ahead on a flat terrain” (964 Patent, page 1).
[59] The Patent describes snowmobile components which may be present in one or more embodiments of the invention:
a frame that includes a tunnel, an engine disposed on the frame, a drive track disposed below and supported by the tunnel and connected operatively to the engine for propulsion of the snowmobile, and two skis disposed on the frame. A straddle seat is disposed on the frame. The seat is dimensioned to support a standard rider in a standard position, the standard rider having the dimensions and weight of a 50th-percentile human male. A footrest is supported by the frame to support the rider’s feet. A steering device is disposed on the frame. The steering device is operatively connected to the two skis for steering the snowmobile. The footrest, straddle seat, and steering device are constructed and arranged such that when the standard rider is in the standard position, the hips are disposed above the knees. (964 Patent, page 2)
[60] When the snowmobile is constructed according to certain embodiments, the Patent teaches preferred distances and relationships for points on the snowmobile and on the standard rider’s body when the rider is in the standard position. The Patent prefers embodiments where the hips are disposed above the knees, the hips are disposed behind the ankles, the hips are behind the steering device and the ankles are disposed behind the knees. But the Patent is also concerned with the positioning of the knees, hips and ankles relative to the steering position: the hips are behind the steering device, the knees are disposed below the steering position, the ankles are disposed behind the steering position and the hips are disposed below the steering position. Furthermore, some measurements are taken relative to the footrest: the steering position is disposed in front of the forward-most portion of the footrest and the footrest position is disposed below the ankle. Finally, the seat position is disposed below the hips and the knee position is disposed in the same area as the knee at a narrowed portion of the seat. For these relationships, the Patent provides some preferred distances in centimetres. It indicates that the relative positions of the steering, footrest, seat, and knee positions can be determined by reference to the relative positions of the steering position and the standard rider’s hips, knees, and ankles.
[61] The 7 Figure drawings illustrate a conventional snowmobile from a side view (said to be a model year 1999 Ski-Doo MXZ), the purported invention snowmobile from side and top views, the rider position from a side view, and a perspective view of the frame, calling out various components and positions. The Patent also provides two illustrations, Figures 6 and 7, which purport to show front and side views of the standard rider wit