Claim Construction Not Applied in Infringement Analysis

Evolution Technologies Inc v Human Care Canada Inc 2019 FCA 209 Laskin JA: Dawson, Stratas JJA rev’g 2018 FC 1302 supplementary reasons 2018 FC 1304 Elliott J
            2,492,392

At trial, Elliott J held that Human Care’s 392 patent related to “rollators” – a “walker” with wheels, primarily used to assist the elderly with mobility issues – was valid and infringed by Evolution Tech: see here. The FCA has now reversed, on the basis that Elliott J erred in law because her finding of infringement was not based on the construction she had arrived at in the claim construction analysis [4], [24], and there was no evidence to support a finding of infringement on the basis of that construction [26]. The FCA accordingly held that infringement was not established, and allowed the appeal. Evolution had relied in part on the prosecution history, invoking the recently enacted subsection 53.1(1) of the Act [3], but this played no part in the FCA’s reasoning.