The Federal Court of Appeal upheld the trial decision of Justice Gauthier in the decision Phostech v. Valence 2011 FCA 237 (PDF) finding that the trial judge made no error in construing the claim to find the patent valid and infringed.

The Court concluded that:

[33] In my view, the trial judge’s interpretation of the expression “carbon” in claim 3 of the ‘115
Patent, resting as it does on the evidence which she accepted as to the person skilled in the art’s
understanding of the term, is unassailable.

[34] The fact that a lawyer, using the usual rules of interpretation, might come to a different
conclusion, is of no consequence. The patent is not directed to lawyers but to persons skilled in the art. This principle is anchored in the language of the Patent Act itself (R.S.C. 1985, c. P-4, s. 27(3)(b) …

The case is an appeal from the decision of Justice Gauthier in 2011 FC 174 (T-219-07).

Dimock Stratton LLP represented the plaintiff patentee at trial and the respondent in the appeal.

[Update: the decision is now available from the FCA website at 2011 FCA 237.]