dTechs EPM Ltd. v. British Columbia Hydro and Power Authority, 2023 FCA 115

Justice Mactavish; Justice Gauthier; Justice LeBlanc - 2023-05-26

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This is an appeal from a judgment of the Federal Court dismissing dTechs claim for infringement of the 087 Patent against the respondents BC Hydro and Awesense. The Federal Court also declared the claims at issue invalid on the grounds of anticipation and obviousness. ... [This decision] illustrates how care must be taken in dealing with a motion for leave to file new evidence before this Court, so that there is no misunderstanding as to the impact of an eventual order by a motion judge granting such leave. It also emphasizes the need for lawyers involved in patent cases to thoroughly consider and assess the admissibility of an expert report before this evidence is actually admitted at trial or, at the very least, before the end of the testimony of said expert. ... As will be explained in these reasons, I would also dismiss the appeal in respect of the infringement action against BC Hydro. However, I would allow the appeal as it relates to the declaration of invalidity sought in the counterclaims in respect of dependent claim 4 because of the potential impact of the new evidence on the Federal Court’s findings regarding that claim. ... the new evidence is not conclusive of anything other than the fact that Mr. Shepherd did not write the first drafts of his reports, it will be for the Federal Court to determine its impact on the weight of Mr. Shepherd’s evidence, if any, on the issues that need to be redetermined.

Decision relates to:


Canadian Intellectual Property