Bauer Hockey Ltd. v. Sport Maska Inc. (CCM Hockey), 2021 FCA 166

Justice Locke; Justice de Montigny; Justice Rivoalen - 2021-08-12

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Bauer appeals a decision of the Federal Court (2020 FC 624) that dismissed Bauer’s patent infringement action against CCM. The Federal Court allowed CCM’s counterclaim and found that the claims in issue of the 748 Patent were invalid for obviousness. ... To set the degree of appellate intervention based on the experience of the judge at first instance would require an appeal court to consider the judge’s background on every appeal. This would result in standards of review in a spectrum, rather than the two standards defined in Housen. In my view, Bauer’s proposed approach to standard of review is inconsistent with Housen, and should not be followed. ... In my view, the Federal Court made no reviewable error in its assessment of obviousness. ... Based on the text of subsection 53.1(1), it would seem that its purpose is to provide a tool to use against patentees who take one position concerning the meaning of a claim during prosecution of a patent application and another during litigation on the resulting patent.

Decision relates to:


Canadian Intellectual Property