Appeal shows power of physical exhibits in IP, says lawyer

Appellants brought disputed health devices to the courtroom

Appeal shows power of physical exhibits in IP, says lawyer
Andrew Brodkin

The Federal Court of Appeal allowed an appeal in a dispute over healthcare devices after the appellants brought the devices to the courtroom.

While not many intellectual property disputes call for using physical exhibits, lawyers should try to get physical exhibits into court when it makes sense to do so, says Goodmans LLP partner Andrew Brodkin, one of the lawyers who represented appellant Evolution Technologies Inc. The decision, Evolution Technologies Inc. v. Human Care Canada Inc., 2019 FCA 209, was released July 18.

“Ultimately the court had in front of it — for the entire appeal hearing over two days — the machines,” says Brodkin. “I cannot believe they could have rendered the justice that, I think, they did, had they not had that opportunity …. It’s important to sometimes realize that you can say things and show things and write things but visual depictions — live and in front of the court — are incredibly powerful.”

The dispute focused on “rollators” (walkers with wheels), and particularly, a part of the devices that used “tension rod means for distributing the weight,” wrote Justice John Laskin, with Justices Eleanor Dawson and David Stratas concurring.

“Rollators are really actually a complicated device because they have to serve a bunch of purposes,” says Brodkin. “The patent in issue was all about the way [the rollator] would both support the weight of the user and easily fold. A great deal of individual parts of the machine were interconnected and worked in unison.”

The panel of appeal court judges found that the lower court had made an error of law in evaluating the tension rod.

“Since the ‘tension rod means’ element is an essential element of the claims that Human Care asserted, this was fatal to the finding that the patent is infringed,” the judges wrote.

Specifically, the lower court considering the patent infringement claim did not apply the construction of the tension rod that it had earlier adopted, the appeal decision said.

“To try to explain the machine with words was really impossible. You needed a visual. We came to the view that trying to explain the machine with photographs was also not acceptable because you really needed to see the machine dynamically — to see how it moved, how the parts related to each other while it moved — to appreciate why our machine didn’t infringe the claims of the patent,”  says Brodkin, who is based in Toronto.

“That led to a need, in our view, to have the trial exhibits on display in the court of appeal, available to counsel to move and manipulate them — to have the court see and even hear the way parts snapped together.”

Lawyers from Norton Rose Fulbright Canada, who represented Human Care Canada, declined to comment.

The case shows the advantages of trying these types of cases in the Federal Court of Appeal, where staff was also accommodating when it came to getting a speedy decision on both a stay and the appeal itself, says Jordan Scopa, another Goodmans LLP partner who worked on the case for Evolution.

“For lawyers who have not been to the federal court and the federal court of appeal, it’s hard to emphasize how …. responsive the court is on day-to-day matters,” says Scopa.  “During the period of the stay, I was genuinely on the phone every day with the judicial administrator, who made herself available.”

Familiarity with the appellate court and process can also be an advantage in cases like this one, where the company’s existence is on the line, says Brodkin. The lower court had ordered Evolution to pay $12 million and stop selling its main product, putting the company’s future at risk, he says.

“Appellate courts, and the federal court, is incredibly disciplined in how it exercises deference in respect to trial judgments,” he says. “It was imperative to us that we presented it in a manner that it didn’t sound like we were just re-arguing the trial.”

Although Brodkin and Scopa were not the lawyers that worked on the case at the trial level — requiring the review of years of work and thousands of documents — they said that a new appellate team can actually both benefit from hindsight and look at the case from a different angle. “Normally litigants who are unsuccessful at the trial division, proceed with their counsel from the trial division at appeal. There’s a reason to do that: a perception the firm knows the case well, and has already invested itself tremendously in the matter,” he says. “It’s in no way a criticism of trial counsel. But a fresh set of eyes may see things differently.”

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