Federal Court

Industrial and Intellectual Property

Claim describing use of cross piece in landing gear had been violated

Plaintiff claimed that their patented landing gear system for helicopters had been breached by two landing gears used by respondent competitor. Applicant sought injunction in addition to damages including punitive damages. Defendant counter-claimed that patent was not valid on various ground. Action allowed. Court found that patent had been violated. Complaint by patentee pertained to two models of landing gears developed by defendant. With respect to the later model developed by defendant, the court found that defendant’s design did not replicate the protected elements of design patented by plaintiff. However an earlier gear mode did violate the claims of the patent. This gear had never been used on a helicopter sold to a client, however, this was irrelevant as it had been used at tradeshows to incite purchases and was withdrawn only when this lawsuit was filed. The court declined the defence that it was practising prior art in developing the complained of landing gear. Defendant failed to establish that key features of patented design were available in publications which were issued prior to the patent invoked by plaintiff. The experimentation defence of defendant was dismissed given that although gears manufactured which violated patent were in fact used for experiments and not sold on the market, they were not solely developed by defendant for this purpose and rather they were withdrawn only pursuant to this lawsuit. Counter arguments on validity were allowed in part, however, this did not prevent a single key claim of the patent from being upheld and found to be violated. Court held on facts that invention was not obvious. Court dismissed arguments premised on patent failing to fully disclose to be specious given that a person of ordinary skills in the art would be able to combine the knowledge of a skilled designer with the teachings of the patent to realize the protected design. The court did find that that fifteen of sixteen claims of the patent failed on grounds of overbreadth and failure to establish utility. However, critically claim 15 which described the use of an integrated front cross piece in the landing gear which improved ground resonance and load factor was found to be validly subjected to patent and had been violated by defendant.

Eurocopter v. Bell Helicopter Textron Canada Ltee

(Jan. 30, 2012, F.C., Martineau J., File No. T-737-08) 213 A.C.W.S. (3d) 1004 (153 pp.).

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