Agi Suretrack LLC v. Farmers Edge Inc.

AGI Suretrack, LLC v. Farmers Edge Inc.
Court (s) Database
Federal Court Decisions
Date
2024-06-18
Neutral citation
2024 FC 934
File numbers
T-449-17
Decision Content
Date: 20240618
Docket: T-449-17
Citation: 2024 FC 934
Ottawa, Ontario, June 18, 2024
PRESENT: Mr. Justice McHaffie
BETWEEN:
AGI SURETRACK, LLC
Plaintiff/
Defendant by Counterclaim
and
FARMERS EDGE INC.
Defendant/
Plaintiff by Counterclaim
JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Overview [1]
II. Parties and Litigation History
A. Background to the Action [12]
B. Nebraska Litigation [17]
C. This Action and Trial [19]
III. Canadian Patent No. 2,888,742
A. Introduction [27]
B. Asserted and Impugned Claims [32]
C. Expert Evidence Addressing the ’742 Patent
(1) Overview of the experts and their evidence [35]
(2) Farmobile’s arguments regarding Mr. Ault [44]
D. The Person of Ordinary Skill in the Art
(1) Principles [48]
(2) The skilled reader of the ’742 Patent [49]
E. The Common General Knowledge
(1) Principles [57]
(2) The CGK of the POSITA [59]
F. Claims Construction
(1) Principles [80]
(2) Claim 1 [94]
(3) Claim 2 [260]
(4) Claim 20 [265]
(5) Claim 21 [284]
(6) Claim 38 [289]
(7) Other dependent claims [298]
IV. Infringement
A. Principles [311]
B. The CanPlug and FarmCommand [315]
C. Pre-April 2021 [319]
(1) Claim 20 [320]
(2) Claim 38 [329]
D. April 2021 to July 2021 [334]
(1) Evidence of the roll-out of the software update [338]
(2) Stand-by utility [344]
(3) Claim 1 [350]
E. July 2021 to April 2022 [355]
F. Post-April 2022 [361]
G. Conclusions on Infringement [370]
V. Validity [371]
A. Nebraska Litigation [373]
B. Anticipation [391]
(1) Principles [393]
(2) John Deere’s GreenStar 3 2630 [396]
(3) Farmobile’s general arguments [401]
(4) Claim 1 [411]
(5) Dependent claims [451]
(6) Conclusion on anticipation [455]
C. Obviousness [460]
(1) Principles [462]
(2) The POSITA and their CGK [470]
(3) The inventive concept [472]
(4) The state of the art [491]
(5) Differences between the state of the art and the inventive concept [495]
(6) The differences would have been obvious to the POSITA at the priority date [503]
(7) Conclusion on obviousness [525]
VI. Motion to Reopen [527]
VII. Disposition and Costs [534]
I. Overview [1] This patent infringement action relates to technology used in precision agriculture. Precision agriculture, or precision farming, uses computer systems to exercise precise control over farming equipment, and to collect and analyze detailed farming data. This allows farmers to plan and implement strategies that optimize yields, efficiency, and profitability.
[2] The patent at issue, Canadian Patent No 2,888,742 [the ’742 Patent], entitled “Farming Data Collection and Exchange System,” pertains to devices and computer systems to harvest and process agricultural data. Of particular importance to the ’742 Patent and to this case are the role of a relay device for relaying data from a farming implement, and the way in which the device or system stores and uses information in an implement profile to understand the data.
[3] The ’742 Patent is owned by the plaintiff, AGI Suretrack LLC. At the date of trial, the plaintiff and patent owner was Farmobile, LLC, which later merged into AGI Suretrack. I will therefore refer to the plaintiff as Farmobile in these reasons. Farmobile alleges the defendant, Farmers Edge Inc, infringes the ’742 Patent through the manufacture and sale of its CanPlug device and associated FarmCommand computer system. Farmers Edge denies that the CanPlug or FarmCommand ever infringed the patent, but says that even if it did at one point, it has implemented changes to its software such that it is no longer infringing. Farmers Edge also alleges the ’742 Patent is invalid on a number of grounds, and counterclaims for a declaration of invalidity.
[4] The parties disagreed on many aspects of both the patent and other issues, legal and factual. A central disagreement related to the construction of two terms found in each claim of the ’742 Patent: manufacturer code and device class. Farmobile contends that the skilled reader would give these terms a broad construction, covering any data point or code that identifies a manufacturer and a device. Farmers Edge argues that in the context of the patent, the skilled reader would understand the terms to have the meaning they have in the particular field of network communication on agricultural equipment, namely that set out in an international standard known as ISO 11783. That standard defines, among other things, data structures for communications between pieces of agricultural equipment, which include a specific format for identification that includes a “manufacturer code” and a “device class,” with a series of standard codes being established for each.
[5] The answer to this construction issue lies in a fundamental principle of patent law, namely that a patent is to be read and construed through the eyes of a person who is skilled in the art or field of the patent. As discussed in further detail below, the ’742 Patent is directed not simply to computer devices and systems generally, but to such devices and systems in the field of agriculture. The person skilled in that art would be familiar with and understand the language used in building and programming devices and systems for agricultural use. That person, reading the ’742 Patent in light of their common general knowledge, would see terms used commonly in the art, and in particular in the relevant applicable international standard. In particular, they would see those terms being used in the very way they are used in the art, namely as a means to identify a piece of agricultural equipment communicating over a network, and would see no indication in the ’742 Patent that the inventors intended to use them in any other way. The skilled reader would understand the terms in accordance with the meaning they have in the art, namely as having the meaning set out in the ISO 11783 standard.
[6] As the parties agree, this conclusion on construction is determinative of all of Farmobile’s allegations of infringement. It is conceded that Farmers Edge’s CanPlug device and FarmCommand system do not, and never did, include an implement profile that defines or contains a manufacturer code or device class construed in this way.
[7] Farmobile’s action is therefore dismissed.
[8] Farmers Edge asserts that some of the claims of the ’742 Patent are anticipated by a prior art product offered by John Deere, known as the GreenStar 3 2630. I agree, with respect to most but not all of the claims raised by Farmers Edge. The GreenStar 3 device disclosed and enabled all of the essential elements of 14 of the 19 device claims in the patent. Contrary to Farmobile’s arguments, those essential elements do not include, and the anticipation analysis does not involve consideration of, an advantage Farmobile infers from the patent disclosure, namely facilitating “interoperability” between farming implements.
[9] Farmers Edge further alleges that the claims of the ’742 Patent that are not anticipated are obvious in light of the prior art and the common general knowledge of the skilled reader of the patent. I again agree. The claims of the ’742 Patent that are not anticipated by the GreenStar 3, including those directed to systems rather than devices, contain no inventive differences over the state of the art. The entirety of the ’742 Patent is therefore invalid.
[10] Farmers Edge’s counterclaim is therefore granted, except as to its claim for declarations as to ownership, which was abandoned at trial.
[11] The parties are to meet and confer in a genuine effort to resolve the issue of costs. If they are unable to do so, they may make submissions in accordance with the schedule set out at the end of these reasons. As a final note to conclude this overview, the Court expresses its regret and apologies to the parties for the time between the completion of trial and the issuance of judgment.
II. Parties and Litigation History A. Background to the Action [12] Farmobile and Farmers Edge are agricultural technology companies. Farmobile is based in Kansas City, Kansas. Farmers Edge is based in Winnipeg, Manitoba. Both companies offer for sale a device that connects with farming equipment to relay data generated by the equipment, and associated software that allows for analysis and use of the data. Farmobile’s device is known as the Passive Uplink Communicator, or PUC. As noted above, Farmers Edge’s device is the CanPlug, which is part of its FarmCommand system.
[13] FarmCommand and the CanPlug were initially developed by Crop Ventures, Inc, a Nebraska company founded in 2012 by a technology entrepreneur named Ron Osborne. In April 2013, Crop Ventures hired another agricultural technology entrepreneur named Jason Tatge to be its President and assist in raising capital for the commercialization of FarmCommand and the CanPlug. Three months later, in July 2013, Mr. Tatge left Crop Ventures after not being paid for two months. Two other Crop Ventures employees, Heath Gerlock and Randall Nuss, also left Crop Ventures in July.
[14] Messrs. Tatge, Gerlock, and Nuss had discussions with a patent attorney over the summer of 2013. In early September 2013, Farmobile was incorporated. On September 23, 2013, Farmobile filed two provisional patent applications in the United States. The ’742 Patent was filed under the Patent Cooperation Treaty on September 22, 2014, claiming priority from the US applications. The inventors of the ’742 Patent are Messrs. Tatge, Gerlock, and Nuss. Mr. Tatge gave evidence at trial.
[15] In January 2015, Farmers Edge acquired Crop Ventures, including the CanPlug and FarmCommand technology. Mr. Osborne joined Farmers Edge, ultimately becoming Chief Technology Officer, the position he held when he left the company in May 2022. Farmers Edge continued, and continues, to develop the FarmCommand system including the CanPlug device, with the first CanPlug being sold in the spring of 2015.
[16] Meanwhile, Farmobile’s PCT application was published on March 26, 2015. The ’742 Patent entered the Canadian national phase on April 17, 2015, and issued on September 15, 2015.
B. Nebraska Litigation [17] The fact that the three inventors of the ’742 Patent were employed at Crop Ventures when it was developing FarmCommand and the CanPlug led Farmers Edge to start litigation in April 2016 in the United States District Court for the District of Nebraska [Nebraska Court; Nebraska Litigation]: Exhibit 65. Farmers Edge claimed, among other things, that the inventors had misappropriated trade secrets, and had breached contracts and duties of good faith and loyalty. It sought, among other things, a declaratory judgment that it was the owner of the US patent application and any applications or patents based on it.
[18] These claims were ultimately determined in favour of Farmobile and the named inventors, largely on grounds of the parties’ agreements, the US “hired to invent” doctrine, Nebraska’s trade secrets statute, and the matters each party claimed to be inventive: Farmers Edge Inc v Farmobile, LLC, No 8:16-CV-00191 (D.Neb., May 3, 2018) (Exhibit 76); Farmers Edge Inc v Farmobile, LLC, No 8:16-CV-00191 (D.Neb., May 3, 2018) (Exhibits 77); Farmers Edge Inc v Farmobile, LLC, No 17-2900 (8th Cir. 2020) (Exhibit 81). Each party in this litigation points to positions taken and evidence filed in the Nebraska Litigation, arguing that the other side is now taking contrary positions. I address these allegations further below.
C. This Action and Trial [19] Farmobile commenced this action in March 2017, asserting that the CanPlug and FarmCommand infringed certain claims of the ’742 Patent. The claims being asserted have changed over time, as the result of both disclosure of Farmers Edge’s software and updates to that software. In particular, an update to Farmers Edge’s software in April 2021, shortly before trial was scheduled to begin, resulted in the trial being adjourned, further amendments being made to the claim and, as discussed below, further expert reports. The result is that by the time of trial, a series of different claims were and are being asserted in respect of different versions of the CanPlug/FarmCommand software over time. These claims, and Farmers Edge’s defences to them, are set out in Farmobile’s Twice Further Amended Statement of Claim, and Farmers Edge’s Thrice Further Amended Fresh as Amended Statement of Defence and Counterclaim, together with the parties’ subsequent pleadings thereto.
[20] The inventors’ prior employment at Crop Ventures, which grounded the Nebraska Litigation, also prompted Farmers Edge to allege in this action that it was the true owner, or at least an owner, of the ’742 Patent, and that Mr. Osborne should be identified as an inventor of the patent. However, shortly before trial, Mr. Osborne decided not to participate further in the litigation. Farmers Edge therefore abandoned its allegations regarding ownership and inventorship.
[21] At trial, the Court heard testimony from five lay witnesses: Mr. Jason Tatge, CEO of Farmobile and one of the inventors of the ’742 Patent; Ms. Joan Archer, General Counsel of Farmobile and, after Farmobile’s acquisition, of its parent, AGI Digital, and who was also Farmobile’s outside counsel in the Nebraska Litigation; Mr. Wade Barnes, co-founder of Farmers Edge, and its CEO until shortly before trial; Mr. Keith Young, Senior Embedded Team Lead at Farmers Edge; and Ms. Lori Robidoux, a former executive of and consultant to Farmers Edge.
[22] Mr. Young and Ms. Robidoux presented their evidence in chief by way of affidavits that were admitted pursuant to Rule 285 of the Federal Courts Rules, SOR/98-106, with no objection from Farmobile: Exhibits 116, 134. They were cross-examined on those affidavits at trial. The Court also received evidence by affidavit from Mr. Tyler Schleicher, a Manager with Deere & Company, in respect of the availability of certain John Deere products (Exhibit 143); and Mr. Christopher Butler, Office Manager at the Internet Archive, with respect to the Internet Archive and the Wayback Machine (Exhibit 144). There was no objection to these affidavits, and Messrs. Schleicher and Butler were not cross-examined.
[23] Patent cases tend to involve, and often require, expert evidence to help the Court understand the patent and the field to which it relates, as well as other issues such as damages or profits. This case was no exception. The parties served some 32 expert reports from ten experts in the course of this litigation, addressing the construction, infringement, validity, and ownership of the ’742 Patent; the economic benefits of patent protection systems; damages and compensation issues including reasonable royalties; and certain issues regarding the law of Nebraska. When issues such as ownership and the Nebraska law questions were withdrawn, five of these reports became unnecessary. The 27 expert reports that were filed as evidence at trial came from eight experts, four on behalf of each party.
[24] Of these, a total of 13 reports were filed by the parties’ two main experts in respect of the construction, infringement, and validity of the ’742 Patent: Dr. George Edwards on behalf of Farmobile and Mr. Aaron Ault on behalf of Farmers Edge. I address their expertise and evidence in detail below.
[25] Given my conclusions on issues of infringement and validity, I need not address the parties’ arguments and expert evidence regarding other issues, including extraterritoriality (the extent to which the ’742 Patent might be infringed by a system that is partially within Canada and partially outside Canada), or remedies flowing from infringement. However, I take this opportunity to thank the parties’ experts on these issues, Dr. Aidan Hollis, Mr. Ross Hamilton, Mr. Marc Vanacht, Mr. Leonard Boon, Dr. Thomas F. Cotter, and Dr. Christine S. Meyer, for their evidence and for sharing their expertise with the Court.
[26] With this background, I turn to the ’742 Patent at issue in this action.
III. Canadian Patent No. 2,888,742 A. Introduction [27] The ’742 Patent relates to the collection of farming data using devices attached to farming equipment, and the processing and recording of the data generated during farming operations. Most modern farming equipment has electronic sensors and control units, and can generate data about its operations. The data generated will depend in part on the nature of the farming equipment (e.g., whether it is a planter, fertilizer, sprayer, or harvester). It can include the amount of seed being planted, the amount of fertilizer being applied, the flow rate of sprayed products, the amount of crop harvested, or whether particular nozzles, sections, or blades on the equipment are activated at any given time. Such crop- or farming-specific data is often termed “agronomic data” to distinguish it from mechanical data such as the oil level or tire pressure of the equipment.
[28] Obtaining and processing agronomic data from farming implements for use in precision agriculture was known prior to the ’742 Patent. The ’742 Patent contends that there were shortcomings in available systems, such that they failed to provide farmers with an “easy-to-use, unobtrusive, secure and reliable way to capture, store, share and profit from” the detailed data generated by farming equipment, with the result that such data often goes uncollected. The patent also refers to difficulties in precisely identifying and describing the particular field where a farming operation takes place, and shortcomings in the “common land unit” [CLU] system implemented by the Farms Services Agency of the United States Department of Agriculture [USDA], notably that it only provides perimeters and does not “account for sections of farming land that, for one reason or another, are not currently being used for farming operations.”
[29] Although modern farming equipment can generate agronomic data, not all equipment sends data in the same format. In other words, not every piece of equipment speaks the same “language,” and equipment from different manufacturers will often speak different languages. These data formats or languages are either publicly known or can generally be reverse-engineered. One aspect of the ’742 Patent involves ensuring the right language, or communication protocol, is used to translate and analyze the data from the implement.
[30] The ’742 Patent has both “device claims” (Claims 1–19), which claim a relay device with certain attributes, and “system claims” (Claims 20–44), which claim a farming data exchange system or a server system (essentially synonymous terms) with certain attributes. The various claims have different elements. However, each claim involves at least three common aspects: (1) a relay device designed for installation on farming equipment, which is the subject of the device claims and the source of data in the system claims; (2) computer memory that stores (i) an electronic farming record, (ii) information about a farming operation land segment, and (iii) an implement profile that contains a manufacturer code, a device class, a version, and a communication protocol for a farming implement; and (3) a computer program that processes and stores collected data. All but six of the claims also specify that the computer program will determine that there is a match between the farming implement in use and that in the implement profile; and all but five of the claims specify that the computer program will use the data from the implement to determine, among other things, a travel path for the implement.
[31] As discussed in greater detail below, the inventors of the ’742 Patent took advantage of their ability to act as “their own lexicographer,” defining in the disclosure of the ’742 Patent a number of terms found in the claims, including terms that are unique to the patent, such as farming operation land segment (FOLS) and travel path. Nonetheless, many terms used in the claims are not defined and there remain significant disputes between the parties with respect to the construction of the claims and thus the scope of the patent.
B. Asserted and Impugned Claims [32] The claims Farmobile asserts to be infringed have changed over time, in part due to changes Farmers Edge made to its system and software to respond to Farmobile’s infringement allegations. The result is that Farmobile now asserts that:
prior to April 2021, Farmers Edge’s FarmCommand system infringed Claims 20, 26, 27, 31 to 39, and 41 to 44 [the Asserted System Claims];
after an update to Farmers Edge’s software in April 2021 [April 2021 Update], to the extent it was implemented, the CanPlug infringed Claims 1, 3, 4, 9, 13, and 17 to 19 [the Asserted Device Claims]; and
after updates to Farmers Edge’s software in July 2021, February 2022, and April 2022 [July 2021 Update; February 2022 Update; April 2022 Update], to the extent they were implemented, the CanPlug continues to infringe the Asserted Device Claims, except for Claim 9.
[33] For the entire period after April 2021 to the present, Farmobile also alleges FarmCommand continues to infringe the Asserted System Claims because of the “stand-by utility” of the continued existence of the code either within the FarmCommand system or available in archives.
[34] Farmers Edge denies it ever infringed any of the claims of the ’742 Patent. In defence and by way of counterclaim, it also alleges that all of the claims of the ’742 Patent are invalid.
C. Expert Evidence Addressing the ’742 Patent (1) Overview of the experts and their evidence [35] Dr. George Edwards filed seven reports in respect of the construction, infringement, and validity of the ’742 Patent on behalf of Farmobile. Mr. Aaron Ault filed six on behalf of Farmers Edge. The need for this many reports flowed in large part from the April 2021 and July 2021 Updates to Farmers Edge’s software, which resulted in the amendments to the pleadings and changes to the claims being asserted described above. I introduce these experts now and provide some general comments with respect to their evidence, before reviewing their evidence in greater detail as the need arises below.
[36] Dr. Edwards is a computer scientist. He obtained a PhD in computer science from the University of Southern California in 2010, focusing on the analysis of distributed systems and their architecture, with an emphasis on mobile applications and “embedded systems,” which are computer and software systems contained within a larger mechanical and electrical system. Dr. Edwards is the President and Principal Computer Scientist at Quandary Peak Research, Inc, a software analysis company he founded in 2012. Dr. Edwards has also lectured in computer science at USC, teaching an undergraduate course and later a graduate-level software engineering course between 2012 and 2017.
[37] Dr. Edwards was qualified to give evidence as an expert in computer science and software engineering with a particular experience and expertise in embedded systems, software analysis, and software architectural development and analysis. Dr. Edwards is not, and does not purport to be, a farmer or to have worked specifically with farming equipment or agricultural software before being retained by Farmobile, although he has designed and programmed software similar to farming information management systems.
[38] The dates of Dr. Edwards’ seven reports that were filed as exhibits, with a summary of their subject matter and how I will refer to the reports in these reasons, are as follows:
Date
Subject Matter
Reference
July 1, 2020
Construction and infringement
Edwards First Report
September 2, 2020
Validity and construction
Edwards Second Report
September 21, 2020
Infringement (proposed non-infringing alternative)
Edwards Third Report
February 15, 2021
Validity (reply)
Edwards Fourth Report
July 16, 2021
Infringement (April 2021 Update)
Edwards Fifth Report
February 28, 2022
Infringement (July 2021 and February 2022 Updates)
Edwards Sixth Report
May 19, 2022
Infringement (reply and April 2022 Update)
Edwards Seventh Report
[39] Farmers Edge objected to the admission of much of the Edwards Sixth Report, arguing that new construction issues raised in that report amounted to an abuse of process and improper case splitting. I address these issues below under the heading “Essentiality and Farmers Edge’s objection to the Edwards Sixth Report,” beginning at paragraph [215].
[40] Mr. Ault is a computer scientist and a farmer. He received a Master of Science in Electrical and Computer Engineering from Purdue University in 2005, specializing in wireless networking and signal processing. He is the co-founder of two agriculture technology concerns: The Qlever Company, LLC, a software development and consulting company; and the Open Agriculture Technology and Systems (OATS) Center at Purdue University, an entity involved in the creation and distribution of open source software and hardware. He is also Vice President at Ault Farms, Inc, his family’s farming operation in Indiana. He has actively farmed with this company throughout his life and also developed software the company uses to manage the farm.
[41] Mr. Ault was qualified to give evidence as an active farmer and an electrical and computer engineer having experience and expertise in embedded systems, wired and wireless networking, programming, data analytics, signal processing, and cloud platforms within agriculture, including precision agriculture hardware and software systems.
[42] The dates of Mr. Ault’s six reports that were filed as exhibits, with a summary of their subject matter and how I will refer to the reports in these reasons, are as follows:
Date
Subject Matter
Reference
July 6, 2020
Construction and validity
Ault First Report
September 2, 2020
Infringement
Ault Second Report
September 21, 2020
Validity (reply)
Ault Third Report
April 13, 2021
Infringement (April 2021 Update)
Ault Fourth Report
July 30, 2021
Infringement (reply re April 2021 Update)
Ault Fifth Report
April 28, 2022
Infringement (July 2021 and February 2022 Updates)
Ault Sixth Report
[43] In my view, both Dr. Edwards and Mr. Ault sought to perform their role as expert witnesses to the best of their ability. Dr. Edwards, not surprisingly, brought the perspective of the computer scientist to his role, while Mr. Ault’s perspective included that of the farmer. As will be seen below, this perspective affected certain aspects of their reading of the ’742 Patent, particularly as it related to the terms manufacturer code and device class. While each witness’ evidence had limitations, and each took positions that I do not adopt, each provided helpful evidence to assist the Court in being able to put itself in the position of the skilled reader for the purposes of construing the patents and assessing the parties’ respective arguments on infringement and invalidity: Whirlpool Corp v Camco Inc, 2000 SCC 67 at para 57.
(2) Farmobile’s arguments regarding Mr. Ault [44] Farmobile argues I ought to prefer Dr. Edwards’ evidence over that of Mr. Ault as a whole because: (a) Mr. Ault’s evidence was results-oriented and that of an advocate rather than an independent expert; (b) Mr. Ault was in a conflict of interest; and (c) Mr. Ault’s company had a consulting agreement with Farmers Edge that he did not disclose. None of these arguments is persuasive. With respect to the first argument, I did not find Mr. Ault’s evidence, either through his reports or in his testimony, to be that of an advocate. While I do not accept his evidence in its entirety, or that of Dr. Edwards, I see no basis for a blanket preference for Dr. Edwards’ evidence. Indeed, as discussed below, there were occasions on which inconsistencies in Dr. Edwards’ evidence raised such concerns.
[45] Nor do I see Mr. Ault’s involvement with the OATS Center, which promotes open source software in the agricultural area, as creating a conflict with his role in reading and construing the ’742 Patent, describing the art and knowledge in the field, and considering whether Farmers Edge infringed the patent. Farmobile refers to one of the OATS Center’s funders, a large agriculture company that is described as a competitor of both Farmobile and Farmers Edge. The fact that such a company acts as one of many sponsors of the university center where Mr. Ault works does not, in my view, raise a concern about conflict or bias. In any event, at no time in reviewing Mr. Ault’s evidence or hearing his testimony did I see any indication that his opinions on relevant matters were or could have been in any way improperly shaped by his employment with Purdue or the OATS Center.
[46] Finally, Farmobile made heavy weather in cross-examination of a 2016 consulting arrangement between Mr. Ault’s company, Qlever, and Farmers Edge, suggesting that the failure to disclose it in his report constituted a breach of the Code of Conduct for Expert Witnesses. I disagree. Paragraph 3(k) of the Code of Conduct requires an expert to include in their report “particulars of any aspect of the expert’s relationship with a party to the proceeding or the subject matter of his or her proposed evidence that might affect his or her duty to the Court”: Federal Courts Rules, Schedule (Rule 52.2), s 3(k). Given the timing, value, and subject matter of the consulting in question, which appears to have been undertaken by a colleague of Mr. Ault and not by him, I can see no basis to conclude that it was of a nature that it might affect Mr. Ault’s duty to the Court. While disclosure of the arrangement might have saved all parties some time in cross-examination and reply evidence, there is no merit in Farmobile’s contention that Mr. Ault not disclosing the arrangement in his report undermines his evidence.
[47] I note that both parties also argued that their expert ought to be preferred over the other based on their backgrounds and expertise, and the consistency of their evidence with the ’742 Patent. I will address the experts’ particular opinions below, but conclude that this is not a case in which one expert’s view ought to simply be adopted on every issue because of concerns about credibility, independence, or advocacy.
D. The Person of Ordinary Skill in the Art (1) Principles [48] A patent is to be read through the eyes of a person of ordinary skill in the art, often termed the POSITA, the skilled person, or the skilled reader. That hypothetical person, who may be an individual or a team of individuals, is not inventive, but has the “ordinary skill and knowledge of the particular art to which the invention relates” and is reasonably diligent in keeping up with advances in that field: Free World Trust v Électro Santé Inc, 2000 SCC 66 at para 44, citing Harold G Fox, The Canadian Law and Practice Relating to Letters Patent for Inventions, 4th ed (Toronto: Carswell, 1969) at p 184; Whirlpool at paras 70–71, 74. They are acquainted with the surrounding circumstances as to the state of the art and with the technical meaning in that art that any particular word or words may have: Whirlpool at para 53.
(2) The skilled reader of the ’742 Patent [49] The parties presented slightly different descriptions of the skilled reader of the ’742 Patent. Each party recognized the POSITA would be skilled in both the technology aspects (device and system design and programming) and the precision agriculture aspects of the ’742 Patent. However, Dr. Edwards put greater emphasis on the technology aspect, while Mr. Ault put more emphasis on the precision agriculture aspect.
[50] Dr. Edwards suggested the POSITA would be either an application-server programmer or an embedded systems engineer (depending on the claims) with a “working knowledge of basic precision agriculture concepts” but no more than a “basic familiarity” or “basic understanding” of the area: Edwards First Report, para 21; Edwards Second Report, para 10; Transcript, Day 3, p 3. He suggested the POSITA would have a bachelor’s degree in computer science or a related field plus about three years of work experience in programming or engineering precision agriculture applications. Alternatively, they could have less education but an equivalent additional amount of work experience.
[51] Mr. Ault described the POSITA as someone skilled in designing and building precision agriculture devices and systems in particular: Ault First Report, para 62; Transcript, Day 8, p 35. They would thus have knowledge and experience in both the precision agriculture aspects of the ’742 Patent and on the software and networking communications aspect. Mr. Ault did not define the POSITA’s specific education or work history, but said they would have education and experience in heavy machinery telematics, agricultural practice, networking and communication protocols specific to modern farming machinery, and software development.
[52] The main difference between these descriptions of the POSITA is in their degree of knowledge of, experience in, and familiarity with precision agriculture and precision agriculture devices and systems. Dr. Edwards says the POSITA would have a working knowledge or basic familiarity of the area, while Mr. Ault says the POSITA would be someone knowledgeable and skilled in designing such devices and systems. As discussed below, Dr. Edwards did not deny that the POSITA would have the knowledge attributed to them by Mr. Ault. However, it was clear that Dr. Edwards views the POSITA’s perspective as primarily that of the computer scientist or software engineer generally, rather than that of one skilled in the art of computer systems and devices on agricultural equipment in particular. While this difference may be subtle, it is important in assessing the skilled person’s common general knowledge [CGK] and how they would read and understand the patent.
[53] In my view, Mr. Ault’s assessment is more consistent with the art described in the ’742 Patent. The ’742 Patent states that its technical field is “systems and methods for capturing farming operation data in real time using passive data collection devices attached to farming equipment while the farming equipment is used to perform the farming operations, and then processing and sharing the farming operation data via an online farming data exchange system or server.” In other words, the field is computer systems and devices relating to agriculture in particular and not simply embedded systems and software engineering that happens to relate to agriculture.
[54] This is confirmed in the patent’s description of the background art, which relates to precision farming, contemporary farming machines, and the computer systems and controllers that are on such machines. This includes discussion of the relay of agronomic data from farming implements, and the value of capturing and storing this data, with reference to “conventional precision farming techniques, computer systems and related technology.”
[55] I conclude the “particular art to which the invention relates” is that of software systems and devices for network communication on, and the collection and processing of data from, agricultural equipment. The person of ordinary skill in this art would have more than a working knowledge of precision agriculture concepts. In other words, they would not simply be a software engineer who has a “basic familiarity with the [domain] for which they are developing software,” as Dr. Edwards suggests: Transcript, Day 3, p 3. They would be skilled, knowledgeable, and experienced in the area of devices and networking on agricultural equipment in particular.
[56] I note parenthetically that I cannot accept Dr. Edwards’ contention that the skilled person for Claims 1 to 19 of the ’742 Patent would be different from the skilled person for Claims 20 to 44: Edwards Second Report, paras 7–14. This Court has held on a number of occasions that the patent is read as a whole and “[t]here cannot be different skilled persons for different claims”: Teva Canada Limited v Janssen Inc, 2018 FC 754 at para 236, citing Janssen Inc v Teva Canada Limited, 2015 FC 184 at para 92; Angelcare Canada Inc v Munchkin, Inc, 2022 FC 507 at para 376. In any event, Dr. Edwards’ contention did not affect his view of the CGK held by the skilled reader, and my rejection of it therefore does not impact my analysis.
E. The Common General Knowledge (1) Principles [57] The skilled reader reads a patent with an appreciation of the CGK in the art to which the patent relates: Cobalt Pharmaceuticals Company v Bayer Inc, 2015 FCA 116 at para 14. The content of the CGK is therefore relevant to the purposive construction of the claims, as well as to the analysis of obviousness: Biogen Canada Inc v Pharmascience Inc, 2022 FCA 143 at para 61.
[58] As the Federal Court of Appeal has recently confirmed, the CGK is “the knowledge generally known by the skilled person at the relevant time, and includes what the skilled person may reasonably be expected to know and be able to find out”: Gemak Trust v Jempak Corporation, 2022 FCA 141 at para 93, aff’g 2020 FC 644 at para 97. What the skilled person may “be able to find out” does not cover all prior art or everything the person might obtain through a reasonably diligent search: Gemak at paras 94–100. Rather, knowledge only becomes part of the CGK where it is “generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art”: Gemak at para 96, citing British Acoustic Films Ltd v Nettlefold Productions (1936), 53 RPC 221 at p 250.
(2) The CGK of the POSITA [59] Dr. Edwards and Mr. Ault generally agreed on the CGK of the POSITA, although again the subtle difference in their description of the POSITA resulted in different emphasis. Both experts set out in their First Reports areas of general knowledge the POSITA would have, notably with respect to precision agriculture. In his First Report, Mr. Ault set out his understanding of the CGK in more detail than Dr. Edwards did in his First Report: Ault First Report, paras 34–38, 64–79, 90–151; Edwards First Report, paras 25–38. In his Second Report, Dr. Edwards largely agreed with Mr. Ault’s statements regarding the CGK, while noting some areas where he considered Mr. Ault’s statements unsupported or unverifiable: Edwards Second Report, paras 18–35.
[60] It is unnecessary to set out the entirety of the CGK presented by the experts. I am satisfied the evidence shows the following information and knowledge formed part of the CGK on both September 23, 2013 (the priority date, relevant to the question of obviousness), and March 26, 2015 (the date of publication, relevant to claims construction). The experts agreed there were no relevant differences in the CGK between these dates: Ault First Report, para 89; Edwards Second Report, paras 15–17. I will summarize the evidence presented regarding the CGK under three primary areas: (a) precision agriculture and modern farming equipment; (b) the ISO 11783 standard; and (c) mapping and farm management information systems/software.
(a) Precision agriculture and modern farming equipment [61] I described the concept of precision agriculture at the outset of these reasons. The precision agriculture industry arose in the 1990s. It sought to obtain and use detailed information regarding farming operations to permit farmers to plan and make farming decisions at a “per-plant” level, something that had become difficult as large-scale mechanization replaced manual labour in agriculture. Precision agriculture relies on farming equipment with electronics and sensors that allow precise control of the equipment and generate detailed agronomic information. Most modern farming equipment includes such electronics.
[62] The electronics on farming equipment are