dTechs EPM Ltd. v. British Columbia Hydro and Power Authority

dTechs EPM Ltd. v. British Columbia Hydro and Power Authority
Court (s) Database
Federal Court Decisions
Date
2021-03-16
Neutral citation
2021 FC 190
File numbers
T-227-17
Decision Content
Date: 20210316
Docket: T-227-17
Citation: 2021 FC 190
Ottawa, Ontario, March 16, 2021
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
DTECHS EPM LTD.
Plaintiff/ Defendant by Counterclaim
and
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC.
Defendants/ Plaintiffs by Counterclaim
PUBLIC JUDGMENT AND REASONS
Table of Contents
I. Overview 3
II. Detection of Electrical Losses from a Power Distribution Grid 7
III. Pleadings and History of the Proceedings 12
IV. 087 Patent 13
V. Claims in Issue 15
VI. Issues 20
VII. Evidence 21
A. Fact and Expert Witnesses 21
(1) dTech’s Witnesses 21
(2) BC Hydro’s Witnesses 22
(3) Awesense’s Witnesses 23
B. Observations Regarding the Evidence 24
VIII. Factual Background 25
A. Mr. Morrison’s Invention 25
B. Awesense’s TGI System 28
IX. Claim Construction 31
A. Legal Principles and Relevant Dates 31
B. Person of Ordinary Skill in the Art (PSA) 32
C. Common General Knowledge of the PSA 34
D. Claim Terms Needing Construction 37
(1) “Connecting the meter to a primary supply line” 38
(2) “Known consumption patterns” 39
(3) “Notifying the utility” 46
X. Infringement 48
A. Legal Principles 48
B. Analysis 49
XI. Validity 55
A. Anticipation 56
(1) Legal Principles 56
(2) BC Hydro’s Prior Use 57
(3) OLO Reference 64
(4) De Reference 68
B. Obviousness 74
C. Conclusion re Validity 83
D. Additional Defences 84
XII. Disposition 84
I.
Overview
[1] Roger Morrison is a former sergeant with the Calgary Police Service [CPS], where he conducted investigations into organized crime and illegal drugs. Through his work as a police officer, Mr. Morrison became interested in the identification of marijuana grow operations [grow ops] by tracing the location of electricity theft.
[2] The police traditionally relied on tips from utility service personnel or the public to initiate investigations into electricity theft and marijuana grow ops. Once a suspect property was identified, a variety of steps could be taken to determine which of the transformers on the secondary line was implicated, and from there which residence was the likely location of the theft or grow op. However, this approach was inefficient and, depending on the location of the transformer, could require the police to obtain a search warrant.
[3] In 2004, Mr. Morrison began developing a more efficient, less obtrusive and less costly method of tracing the location of electricity theft. This involved attaching an ammeter to the primary medium voltage [MV] supply line at electrical junctions. Each junction supplied power to an average of ten distribution transformers, and each transformer supplied power to an average of eight residences.
[4] Mr. Morrison surmised that if unusually high electrical usage was detected on the primary supply line, in comparison with common usage, then that would indicate a potential grow op somewhere in the portion of the electrical grid supplied by that primary junction. Once suspicious usage was identified, further investigative steps could be taken to identify the suspect customer.
[5] Mr. Morrison considered his idea to be novel, and a significant improvement over the traditional approach. He also considered it to be cost-effective, because a single primary line meter could be used to monitor up to a hundred customer service points for theft.
[6] In early discussions, a question that often arose was whether relatively small diversions of electricity on secondary service lines could be accurately detected by metering on primary supply lines, particularly using an ammeter as Mr. Morrison proposed. Mr. Morrison’s solution was to procure a digital recording ammeter that could accurately measure current to a resolution of 0.1 amps.
[7] In November 2005, Mr. Morrison engaged Broy Engineering in Toronto to design and manufacture a digital recording ammeter [DRA] with 0.1A resolution. A prototype was delivered to Mr. Morrison by March 2006, and Mr. Morrison tested his method the same month. He was pleased with the results.
[8] Shortly thereafter, Mr. Morrison requested a one year leave of absence from the CPS to commercialize his invention. He never returned to his job as a police sergeant.
[9] On May 24, 2006, Mr. Morrison incorporated dTechs epm Ltd [dTechs]. On May 31, 2006, he filed an application for a patent with a priority date of February 10, 2006, based on an earlier filing.
[10] On March 12, 2008, Mr. Morrison assigned ownership of his invention to dTechs. On July 22, 2008, dTechs was granted a United States patent. The Canadian Patent was issued on January 20, 2009, listing dTechs as the owner and Mr. Morrison as the inventor.
[11] Canadian Patent 2,549,087 [087 Patent] is titled “Electrical Profile Monitoring System for Detection of Atypical Consumption”, and relates generally to “monitoring usage of utilities, such as electrical, for alterations in normal patterns of consumption of utilities, and, more specifically, to a system of detection of patterns indicative of theft of electrical utilities, such as in the indoor cultivation of marijuana”.
[12] British Columbia Hydro and Power Authority [BC Hydro] is a Crown corporation and electrical utility. It is one of the largest energy suppliers in Canada, generating and delivering electricity to 95 per cent of the population of British Columbia.
[13] Awesense Wireless Inc [Awesense] was founded in 2009. Its founder and chief executive officer is Mischa Steiner-Jovic, known professionally as Mischa Steiner. Mr. Steiner’s vision for his start-up company was to use wireless technology and data analytics to optimize the electrical distribution grid. He first presented a concept for grid optimization to BC Hydro in May 2010. Thereafter, Awesense entered into a series of contracts with BC Hydro for the supply of wireless ammeters and energy meters for use on the primary supply line, together with supporting software.
[14] dTechs alleges that BC Hydro uses a system, supplied by Awesense, that relies on the methods described in the 087 Patent to detect electricity theft, and thereby infringes specified claims of the patent. While Awesense does not perform each of the steps itself, dTechs says that it is liable for inducing or procuring its customers to infringe the 087 Patent. dTechs also alleges that Awesense is liable under the legal doctrine of common design.
[15] For the reasons that follow, neither BC Hydro nor Awesense, individually or together, infringes the asserted claims of the 087 Patent. Furthermore, the asserted claims of the 087 Patent are invalid on the grounds of anticipation and obviousness.
II. Detection of Electrical Losses from a Power Distribution Grid
[16] The following summary of methods to detect electrical losses from a power distribution grid is adapted from the overview provided by Carl LaPlace in his expert report dated April 10, 2020.
[17] An electrical power grid or delivery system comprises several levels. Power delivery “flows down” through these levels or functional components as it moves from the generation plant to the customer. Generated power typically flows from the transmission level to substations, then to feeders, and finally to customers.
[18] An electrical utility grid consists of the following functional levels or components (Expert Report of Carl LaPlace dated April 10, 2020, Figure 1):
[19] Electricity is generated from resources such as coal and natural gas. Generating stations are commonly called power plants. Electricity is generated at power plants by electromechanical rotating machines, fueled by combustion or nuclear fission or, in the case of hydroelectric power generation, by water-driven turbines.
[20] The transmission level is a network of three-phase lines operating at voltages that are usually between 115kV and 765kV. Transmission lines are designed to deliver power over long distances from generators to substations, and are interconnected to form a grid. This means that there is more than one electrical path between any two points in the system, improving reliability and operating flow: if one line fails, there is an alternate route to ensure that power flow is uninterrupted.
[21] Substations are the meeting points between the transmission grid and the distribution feeder system. One of their main functions is to convert incoming power from high voltage transmission lines to the lower primary feeder voltage required for distribution.
[22] Primary MV feeder lines are typically overhead distribution lines mounted on wooden poles or buried underground. They route power from the substation throughout its service area. Feeder lines operate at the primary distribution voltage, which is typically between 4.2kV and 34.5kV throughout North America. One substation will normally supply between two and 12 feeder lines.
[23] Service or distribution transformers lower the voltage from the primary MV feeder voltage to customer voltage, which is normally a two-leg 120/240V service throughout North America. In overhead construction, service transformers are pole-mounted, single phase transformers. There may be several hundred service transformers along a primary MV feeder line.
[24] Secondary circuits are fed by the service or distribution transformers. They route power at 120/240V directly to end-use customers. Each transformer serves a small radial network of secondary low voltage [LV] service lines. These service lines are connected to the customers’ service point meters in the immediate vicinity. The meters may be analog or digital “smart” meters.
[25] A “smart grid” is an electrical power grid that uses digital intelligent electronic devices, computers and communication data networks to control, protect and automate the power grid. This may be contrasted with older analog-based technologies dating back many decades which are capable of only localized analog data processing and control. Smart grid devices include digital-based protection and control relays, remote terminal units, supervisory and control and data acquisition [SCADA] systems, smart appliances, digital-based renewable energy solutions, distribution automation systems, etc.
[26] When the 087 Patent was published in August 2007, the vast majority of meters in service used the older analog technology. This technology had two significant shortcomings: 1) the inability to provide real-time or time-synchronized consumption data (analog metering could only provide total energy consumption); and 2) the inability to export digitized data wirelessly. The latter limitation resulted in significant labour costs due to the need to read customer service point meters in person.
[27] Digital smart meters began to appear in 2007. The first generation of smart meters had limited wireless connectivity and still required a vehicle to pass by and upload the metered data. However, the new smart meters did have the ability to measure time-synchronized or real-time consumption. This was a significant technological advancement in the detection of power loss and theft.
[28] As of August 2007, typical “smart grid” methods for detecting power loss or theft were focused on the secondary end-point or customer service point. One method enabled by smart meters was to analyze real-time consumption data measured in kilowatt-hours [kWh] via the customer service point meter to identify atypical or suspicious patterns of consumption.
[29] In 2007, the use of smart meters at every customer service point was rare. Even with smart meters, monitoring at the service point had limitations because meters could be bypassed, masking the theft.
[30] Tamper detection techniques deployed within customer service point meters, such as the so-called “blink count”, were understood as of August 2007. This technique involved recording the number of times that a meter had been de-energized in comparison with neighbouring meters. An unusually high blink count could mean that a customer had removed the meter to tamper with it, or install jumpers around the base. However, this technique could not detect theft by live-tapping customer service drop wires ahead of the meter, which was fairly common at the time.
[31] Another known method of theft detection was to measure distribution transformer heat signatures fed by the primary MV feeder lines to identify excessive loading or overloading. However, this was not always practical, because the transformer had to be overloaded at the precise moment of the drive-by in order to be detected.
[32] Consumption metering at the distribution transformer was a known method of detecting electricity theft as of August 2007. This involved measuring the full energy input of a distribution transformer connected to the primary line, and comparing this to the aggregate energy output of a transformer’s secondary lines at the end points. The total energy output of the transformer should be equal to its primary energy input (minus secondary distribution line losses). Any missing energy might indicate that a customer supplied from that transformer was stealing electricity. This technique initially had limited practical application, because it required the installation of meters on every transformer, or other means of identifying suspect transformers.
[33] With the advent of modern smart grids and smart meters, comparison of the energy input of a distribution transformer connected to the primary line with the aggregate energy output of a transformer’s secondary lines at customer service points has become commonplace. BC Hydro was the first utility in North America to deploy a system-wide energy balancing capability across the distribution grid, and the method is now widely used by utilities throughout North America and beyond.
III. Pleadings and History of the Proceedings
[34] This action was commenced by dTechs by Statement of Claim dated February 16, 2017. dTechs subsequently amended its pleadings on November 20, 2017.
[35] BC Hydro filed its Statement of Defence and Counterclaim on December 15, 2017. Its pleadings were subsequently amended on July 17, 2019, February 20, 2020, August 19, 2020 and November 9, 2020.
[36] Awesense filed its Statement of Defence and Counterclaim on December 15, 2017.
IV. 087 Patent
[37] The priority date of the 087 Patent is February 10, 2006. Its filing date is May 31, 2006, and its publication date is August 10, 2007. The 087 Patent was issued on January 20, 2009.
[38] The Abstract of the 087 Patent reads as follows:
Methods of detecting atypical patterns of usage of electricity, determined by monitoring consumption at the primary line, permit detection of grow-ops and unusual line losses due to defective service lines. A meter having a high resolution is connected to the primary line and the data collected is compared to known consumption patterns thus identifying a potential theft or a loss. Once an atypical pattern has been found, the heat signatures of transformers fed by the primary line are measured. An unusual heat signature alerts the utility to load test the secondary lines of each residence fed from the transformer and thus locate suspect residences which may be grow-ops or to locate a line loss due to defective service lines.
[39] The 087 Patent states that the Field of Invention relates to “systems for monitoring usage of utilities, such as electrical, for alterations in normal patterns of consumption of utilities and, more specifically, to a system of detection of patterns indicative of theft of electrical utilities, such as in the indoor cultivation of marijuana”.
[40] According to the Background of the Invention, electrical theft results in millions of dollars of loss per year; $500 million in Ontario alone. The most significant contributor to electrical theft is said to be the indoor cultivation of marijuana. In addition to financial losses, additional costs to the community include property damage, increased risk of fire due to faulty wiring, and electrical brown-outs and power outages due to overloaded transformers.
[41] The inventor acknowledges that there are known systems to monitor consumption at secondary lines that feed electricity from the transformer to the residence and which are capable of detecting over-usage. However, the inventor claims that, to his knowledge, no systems currently in use are capable of economically identifying atypical usage patterns at the primary level, and thereafter pinpointing specific households that may be of interest to utilities and law enforcement personnel. Over-usage due to a marijuana grow op is difficult to detect at the primary level, because it will not usually be recognized as a significant alteration in measurement with the use of conventional metering.
[42] The Background of the Invention concludes as follows:
There is great interest in systems which can be used to identify uncommon consumption patterns, at the primary level, which may be indicative of utility theft and which do not infringe upon existing laws which protect individual rights and freedoms.
[43] According to the Summary of the Invention:
Embodiments of the invention provide a method of detecting atypical consumption patterns which when compared to known patterns of consumption are useful in identifying electrical losses or theft, such as by marijuana grow-ops. Use of a meter having a resolution capable of detecting suspect usage patterns on the primary line permits monitoring of consumption patterns without the need to access private property and which cannot be bypassed which is typically the case with individual residence metering and grow-ops.
[44] The 087 Patent provides a Brief Description of the Drawings, as well as a Detailed Description of the Preferred Embodiment. This is followed by 35 claims.
V. Claims in Issue
[45] dTechs alleges infringement of claims 1, 4 to 9, 13 to 29 and 33 to 35 [asserted claims].
[46] BC Hydro counterclaims that the asserted claims of the 087 Patent are invalid. Awesense maintains that the 087 Patent is invalid in its entirety, but addressed only the asserted claims in its evidence and arguments.
[47] Claim 1 is independent. It reads as follows:
1. A method for detection of atypical electrical consumption patterns comprising:
providing a meter for detecting consumption of electricity from a utility;
connecting the meter to a primary supply line, the primary supply line supplying electricity to a plurality of transformers, each transformer feeding the electricity to a plurality of structures, the meter having a resolution for detecting variation from known consumption patterns in the primary supply line;
monitoring the primary supply line at predetermined time intervals for consumption of electricity;
collecting data for determining measures indicative of patterns of consumption;
comparing the patterns of consumption to known consumption patterns for identifying suspect consumption patterns; and
when a suspect consumption pattern is identified, notifying the utility of the identified suspect consumption pattern in the primary line, the utility thereafter monitoring characteristics of the plurality of transformers for identifying a suspect transformer; and
load testing at least one of a plurality of secondary lines from the suspect transformer to each of the plurality of structures for identifying a suspect structure.
[48] Claim 4 depends from claim 1, 2 or 3. It reads as follows:
4. The method of claim 1, 2 or 3 further having a smart meter connected to secondary lines at each structure for determining consumption at each of the structures, the method further comprising:
Comparing electrical supply at the primary supply line to a sum of consumption at all of the secondary lines for reconciling consumption to the supply.
[49] Claim 5 depends from any of claims 1 to 4. It reads as follows:
5. The method of any one of claims 1 to 4 wherein the characteristics of the plurality of transforms monitored is a heat signature.
[50] Claim 6 depends from claim 5. It reads as follows:
6. The method of claim 5 wherein the heat signature is monitored using an infrared laser.
[51] Claim 7 depends on any one of claims 1 to 6. It reads as follows:
7. The method of any one of claims 1 to 6 wherein the meter has a resolution for detecting electrical consumption in a range of less than 1 amp.
[52] Claim 8 depends from any one of claims 1 to 7. It reads as follows:
8. The method of any one of claims 1 to 7 wherein the meter has a resolution for detecting electrical consumption in a range of about 0.01 to about 0.1 amp.
[53] Claim 9 depends from any one of claims 1 to 8. It reads as follows:
9. The method of any one of claims 1 to 8 wherein the suspect consumption pattern is greater than a known consumption pattern over a predetermined period of time.
[54] Claims 13 depends from claims 1 to 12. It reads as follows:
13. The method of any one of claims 1 to 12 wherein the meter is a digital recording ammeter.
[55] Claim 14 depends from claim 13. It describes a method as follows:
14. The method of claim 13 wherein the digital recording ammeter has a resolution for detecting electrical consumption in a range of less than 1 amp.
[56] Claim 15 depends from claim 13. It reads as follows:
15. The method of claim 13 wherein the digital recording ammeter has a resolution for detecting electrical consumption in a range of about 0.01 to about 0.1 amp.
[57] Claim 16 depends from claims 13, 14 or 15. It describes a method as follows:
16. The method of claims 13, 14 or 15 wherein the digital recording ammeter is programmed to actuate at the predetermined time intervals for measuring electrical consumption.
[58] Claim 17 depends from claims 13 to 16. It reads as follows:
17. The method of any one of claims 13 to 16 wherein the digital recording ammeter further comprises a buffer for storage of data obtained at the predetermined intervals.
[59] Claim 18 depends from claim 17. It reads as follows:
18. The method of claim 17 further comprising:
Processing the stored data for determining measures indicative of electrical consumption patterns; and transmitting the measures indicative of electrical consumption patterns to the utility.
[60] Claim 19 depends from claim 17 or 18. It describes a method as follows:
19. The method of claim 17 or 18 further comprising:
Transmitting the stored data to a processor for determining measures indicative of electrical consumption patterns.
[61] Claim 20 depends from claim 19. It reads as follows:
20. The method of claim 19 wherein the transmitting of stored data is by wireless technology.
[62] Claim 21 is another independent claim. It reads as follows:
21. A method for detection of atypical electrical consumption patterns in an electrical system having a primary supply line supplying electricity to a plurality of transformers and wherein each transformer supplies electricity to a plurality of consumers through a plurality of secondary lines, the method comprising:
metering the primary supply line at predetermined time intervals for establishing data indicative of patterns of consumption;
comparing the patterns of consumption to known consumption patterns for identifying suspect consumption patterns, and when a suspect consumption pattern is identified, monitoring characteristics of the plurality of transformers for identifying a suspect transformer from the plurality of transformers; and
load testing at least one of the plurality of secondary lines form the suspect transformer to each of the plurality of consumers.
[63] Claim 22 depends from claim 21. It reads as follows:
22. The method of claim 21 wherein the monitoring characteristics of the plurality of transformers further comprises:
Notifying a monitoring agency of the suspect consumption pattern in the primary line, wherein the monitoring agency then monitors the characteristics of the plurality of transformers.
[64] Claim 23 depends from claim 21 or 22. It reads as follows:
23. The method of claim 21 or 22 wherein the load testing at least one of the plurality of secondary lines from the suspect transformer is for identifying a suspect consumer.
[65] Claim 24 depends from claim 21, 22 or 23. It reads as follows:
24. The method of claim 21, 22 or 23 wherein the metering of the primary supply line is performed at a resolution for detecting variation from known consumption patterns in the primary supply line in response to suspect consumption patterns generated by the activities of a consumer.
[66] Claim 25 depends from claims 21 to 24. It reads as follows:
25. The method of any one of claims 21 to 24 wherein the characteristics of the plurality of transforms [sic] monitored is a heat signature.
[67] Claim 26 depends from claim 25. It reads as follows:
26. The method of claim 25 wherein the heat signature is monitored using an infrared laser.
[68] Claims 27 and 28 depend from claim 24. They read as follows:
27. The method of claim 24 wherein the metering is performed at a resolution for detecting electrical consumption is a range of less than 1 amp.
28. The method of claim 24 wherein the metering is performed at a resolution for detecting electrical consumption in a range of about 0.01 to about 0.1 amp.
[69] Claim 29 depends from any one of claims 21 to 28. It reads as follows:
29. The method of any one of claims 21 to 28 wherein the suspect consumption pattern is greater than a known consumption pattern over a predetermined period of time.
[70] Claim 33 depends from claims 21 to 32. It reads as follows:
33. The method of any one of claims 21 to 32 wherein the metering is performed using a digital recording ammeter.
[71] Claims 34 to 35 depend from claim 33. They read as follows:
34. The method of claim 33 wherein the digital recording ammeter has a resolution for detecting electrical consumption in a range of less than 1 amp.
35. The method of claim 33 wherein the digital recording ammeter has a resolution for detecting electrical consumption in a range of about 0.01 to about 0.1 amp.
VI. Issues
[72] The issues raised in these proceedings are whether the asserted claims of the 087 Patent are infringed by BC Hydro, Awesense, or both; and whether the asserted claims of the 087 Patent are valid.
VII. Evidence
A. Fact and Expert Witnesses
(1) dTech’s Witnesses
[73] Mr. Roger Morrison is the named inventor of the 087 Patent. He is the founder of dTechs, a company to which he assigned ownership of the 087 Patent shortly before this litigation was commenced. Mr. Morrison is a former sergeant with the CPS, with a speciality in the investigation of organized crime and illegal drugs. Mr. Morrison testified as a fact witness.
[74] Mr. Peter Roy is a professional engineer. He is the president and owner of Broy Engineering in Toronto. Mr. Roy was called as a fact witness.
[75] Mr. Carl LaPlace is an electrical engineer with more than 35 years of experience. He has held a variety of technical and engineering leadership roles in several global smart grid companies, including Siemens, ABB, Elster-Honeywell, Sensus and GE. He was qualified as an expert in electrical engineering, in particular regarding electricity distribution systems and related technologies, including technologies and methods for monitoring electricity distribution, and identifying technical and non-technical losses.
(2) BC Hydro’s Witnesses
[76] Mr. John Millard is the manager of customer analytics, revenue, and risk management at BC Hydro. Mr. Millard was called as a fact witness.
[77] Mr. Wayne Cross is a former manager of revenue metering at BC Hydro. Mr. Cross was called as a fact witness.
[78] Mr. Brent Hughes is a former manager of revenue metering at BC Hydro. Mr. Hughes was called as a fact witness.
[79] Mr. Paul Trustham is a field inspection advisor at BC Hydro. Mr. Trustham was called as a fact witness.
[80] Mr. J. Bradley Shepherd is a professional engineer who has practised for more than fifty years as an electrical engineer and manager in the industry. Before becoming a professional engineer, for ten years he worked as an electrician, electronics technician and electrical project cost estimator in commercial, residential, aerospace and marine environments. He was qualified as an expert in electricity distribution and related engineering and utility practices, including methods, processes, equipment and techniques related to identifying and addressing losses in electricity distribution systems including, in particular, losses due to theft and/or energy diversions, including marijuana grow op-related energy diversions.
(3) Awesense’s Witnesses
[81] Mr. Greg Shaigec is a contractor to Fortis BC, a major electrical utility in British Columbia. Mr. Shaigec was called as a fact witness.
[82] Mr. Mischa Steiner-Jovic is the founder and chief executive officer at Awesense Wireless Inc. Mr. Steiner was called as a fact witness.
[83] Mr. William Bennett is a retired professional engineer with more than 35 years of experience in the electricity and distribution industry. He is familiar with all aspects of grid operations and management. He was qualified as an expert in electricity grid management, utility operations and maintenance, grid technology, distribution planning and engineering, overhead and underground distribution systems design and constructions, system office control and operations, including SCADA systems, metering operation, investigation support and wholesale billing.
B. Observations Regarding the Evidence
[84] The parties acknowledged the expertise of the expert witnesses who were called to testify in these proceedings, reserving any questions they might have regarding the quality of their evidence for cross-examination and argument.
[85] dTechs says that the evidence of Mr. LaPlace should be preferred over that of the experts called on behalf of the Defendants. dTechs maintains that Mr. Shepherd was not well positioned to comment on the common general knowledge of the person of ordinary skill in the art at the relevant times, because he stopped working in the field of electricity distribution engineering in 1994. He then changed his focus to insurance and litigation support. Since 2006, his business has consisted almost entirely of investigating and testifying in litigation arising from electrocution, electrical fire, property damage and expropriation.
[86] dTechs argues that Mr. Bennett was neither independent nor objective. dTechs says that the opinions expressed in Mr. Bennett’s report were not the product of his own judgment, but were heavily influenced by the expert reports of witnesses retained by BC Hydro. Throughout his report, Mr. Bennett used marketing language to describe the capabilities of Awesense’s system, and unduly restrictive language to describe the 087 Patent, in an apparent effort to emphasize the differences between the two.
[87] BC Hydro notes that Mr. LaPlace was never employed by a utility, and never responsible for operating or managing an electrical distribution system. He never worked as a lineman or alongside linemen for a utility, never worked as an electrician, and never investigated an electrical theft or instance of unknown loss in a distribution system.
[88] Awesense adds that Mr. LaPlace has made his career in product development and sales with equipment manufacturers specializing in power and automation technology. Awesense argues that, given his long history with smart grid technologies, Mr. LaPlace approached the 087 Patent through the lens of digital and communication technologies, even though the 087 Patent does not offer any teachings in this field. Awesense maintains that Mr. LaPlace’s lack of direct involvement in power theft investigations caused him to minimize the critically important practical aspects of the 087 Patent.
[89] Some of the criticisms made by the parties respecting the qualifications or approaches of the expert witnesses who testified in these proceedings are valid. However, none of them is sufficient to undermine any of the witnesses’ evidence in its entirety. My reasons for preferring some witnesses’ evidence over others are explained below.
VIII. Factual Background
A. Mr. Morrison’s Invention
[90] Mr. Morrison was a police officer with the CPS between 1986 and 2006. In the early 2000s, he was promoted to the rank of sergeant in the drug unit, and was given responsibility for the investigation of marijuana grow ops.
[91] Mr. Morrison had no formal training in electricity distribution, and no experience using DRAs. The police would enlist the cooperation of electrical utilities to conduct their investigations, and would ask a utility to connect a DRA to an electrical line supplying a suspect property in the hope of finding evidence to confirm the presence of a grow op.
[92] In the early 2000s, police investigators understood that DRA measurements could be used to: (a) identify unusually high electrical consumption; (b) reconcile DRA data with metered consumption; and (c) identify cyclical patterns of consumption (resembling “skyscrapers” when plotted on a graph), typical of the growing cycle of marijuana plants.
[93] Mr. Morrison became interested in improving the efficiency and cost-effectiveness of methods to identify atypical levels of electrical consumption that might be indicative of a marijuana grow op. In October 2004, he described his ideas in a document titled “Operation Lights Out”. He developed the document while employed as a police officer, and he considered it to be an official and confidential operational plan of the CPS.
[94] Operation Lights Out included a proposal to detect marijuana grow ops in the following manner:
The strategy is to place an electrical profiling device to monitor the primary electrical junctions, which in turn feeds electricity to residential transformers. The device will monitor the electrical load from the residential area and if extreme high electrical usage is detected over an [sic] six (6) hour time span the device will notify a central computer.
[95] Pursuant to Operation Lights Out, once the electrical profiling device identified suspiciously high primary line consumption, the utility would identify a suspect downstream transformer by measuring each transformer’s temperature, and would then identify a suspect structure by examining a plurality of secondary loads from any suspect (i.e., overheated) transformer.
[96] Mr. Morrison disclosed Operation Lights Out to his direct supervisor at the CPS on October 7, 2004, who in turn shared the document with employees and directors of ENMAX, a Calgary utility. Mr. Morrison continued to refine his proposal based on the feedback he received.
[97] On August 22, 2005, Mr. Morrison contacted Wayne Cross, a senior engineer with BC Hydro, though a family connection. He described his invention to Mr. Cross, and also sent him some written information regarding his proposed method and test results. Mr. Cross questioned whether attaching an ammeter to the primary MV line would provide sufficient accuracy to assess whether theft was occurring downstream at one of the many associated LV secondary service lines. He advised Mr. Morrison that BC Hydro was focusing its theft detection research on deploying energy meters at transformers.
[98] On February 10, 2006, Mr. Morrison filed Canadian Patent Application 2,535,848. The application did not refer to DRA measurements at the primary supply line, nor to the use of smart meters. The application was ultimately abandoned.
[99] Mr. Morrison engaged Broy Engineering in Toronto to design and manufacture a DRA with 0.1A resolution, so that he could test his method. A prototype was delivered to Mr. Morrison by March 2006, and the method was tested the same month. Mr. Morrison considered the test to be successful.
[100] In April 2006, Mr. Morrison requested a leave of absence from the CPS. He filed the application for the 087 Patent on May 31, 2006.
B. Awesense’s TGI System
[101] In the spring of 2008, BC Hydro formed a working group to assess the optimal implementation of an automated electricity theft detection system. Mr. Cross was part of that working group. He asked the group: “Can we use current on feeders?”
[102] The BC Hydro working group conducted some testing using primary line ammeters, but cautioned that it “shouldn’t have too high expectations for ammeter data” given concerns about accuracy. A member of the group noted that there was only one high resolution ammeter on the market, but the data needed to be downloaded manually.
[103] In the summer and fall of 2009, Mr. Steiner met regularly with Paul Chernikowsky, Engineering Director at the electrical utility Fortis BC. Mr. Steiner learned that utilities were suffering significant energy losses in the distribution grid, and there were serious gaps in monitoring, particularly in segments downstream of distribution substations and upstream of customers.
[104] Mr. Steiner conceived of a wireless sensor unit that could be deployed on MV lines throughout the grid. In February 2010, he met with Fortis BC’s Revenue Protection and Special Projects team to discuss his idea.
[105] In the summer of 2010, Awesense conducted a first pilot project with Fortis BC, and tested a prototype of its sensor unit, named the Raptor 1, on the utility’s MV feeder lines.
[106] Mr. Steiner then approached BC Hydro and met with John Millard, BC Hydro’s project manager of the Revenue Assurance Group. Awesense subsequently conducted tests on BC Hydro’s MV feeder lines, and developed a new version of its sensor unit, which it named the Raptor 2.
[107] On January 24, 2011, BC Hydro and Awesense entered into an agreement for the supply of ten Raptor 2 units and communication software for the purposes of a pilot project.
[108] On December 19, 2011, Awesense responded to BC Hydro’s Request for Proposals [RFP] No 1054 for the supply of “Portable check meters to measure energy and load flowing through a target distribution section either at primary or secondary voltage overhead or underground for a short term field investigation and energy inventory with downstream customer meters”. Awesense proposed a complete platform capable of assessing all aspects of revenue protection and theft prevention using big data analytics. This included the first version of Awesense’s web-based software, which was then called “SenseNet”.
[109] BC Hydro accepted Awesense’s proposal, and on June 6, 2012 Awesense entered into a contract with BC Hydro for the supply of 200 Raptor 2 meters, as well as software to transfer measurement data onto a laptop computer. This could then be uploaded to Awesense’s cloud-based software application. Awesense’s support was limited to providing a technical helpdesk. In May 2014, BC Hydro leased an additional 100 Raptor 2 units from Awesense, bringing the total number of units under BC Hydro’s control to 300.
[110] On July 14, 2014, Awesense responded to BC Hydro’s RFP No 1850 for the supply of portable check meters. Awesense took the opportunity to outline its vision for new data analytics software that it had under development and hoped to commercialize. This included an energy balance module in the software, and a new Raptor 3 prototype.
[111] On November 19, 2014, Awesense was awarded a contract with BC Hydro for the supply of 5,000 Raptor 3 units between 2015 and 2017. Awesense continued to develop the energy balancing functionality of its software, which was now named True Grid Intelligence [TGI]. This was eventually made available to BC Hydro, together with a plan to ensure interoperability between TGI and BC Hydro’s existing system architecture.
IX. Claim Construction
A. Legal Principles and Relevant Dates
[112] The first step in a patent suit is to construe the claims to ascertain their meaning and determine their scope (Whirlpool Corp v Camco Inc, 2000 SCC 67 [Whirlp