Friday, June 8, 2018

For the Third Time, Infringement of Claim 17 was Induced

Grenke v DNOW Canada ULC 2018 FC 565 Phelan J

The original liability decision in this case was Weatherford v Corlac 2010 FC 602. This was largely affirmed on appeal, 2011 FCA 228, but remanded on the sole issue of inducement as it related to Claim 17. Phelan J’s decision on remand 2012 FC 76 (discussed here),was again remanded by 2012 FCA 261, on the basis that Phelan J had not properly appreciated the scope of the issues remanded. In particular, he did not revisit a crucial factual finding, considering it to be res judicata. The FCA clarified that it had intended him to consider the factual issue as well.

This decision is therefore Phelan J’s third time addressing this issue. The question is moot, as it has no effect on the damages decision (blogged yesterday), and the parties had urged Phean J not to address the issue. While acknowledging that the issue is moot, Phelan J felt bound by the instructions of the FCA to reconsider it [3]-[4].

As I noted in my post on the remand decision, “the factual finding was implicit in Phelan J’s original decision,” and consequently, “it would be surprising if his determination were to change now that he will be required to make it explicitly.” It is entirely unsurprising, therefore, that Phelan J on reconsideration has re-affirmed his original holding that the defendants induced infringement of Claim 17.

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