LUC BESSETTE Plaintiff v. ATTORNEY GENERAL OF QUEBEC AND RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC, 2019 FC 393

Date: 20190402 Docket: T-975-16 Citation: 2019 FC 393 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Ottawa, Ontario, April 2, 2019 PRESENT: The Honourable Mr. Justice LeBlanc BETWEEN: LUC BESSETTE Plaintiff and ATTORNEY GENERAL OF QUEBEC AND RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC Defendants PUBLIC JUDGMENT AND REASONS Table of Contents I. INTRODUCTION 3 I. GENERAL BACKGROUND 4 II. DESCRIPTION OF PATENTS AT ISSUE 6 A. Patent 794 6

(1) Description 6

(2) Claims 12 B. Patent 598 13

(1) Description 13

(2) Claims 16 III. OVERVIEW OF EVIDENCE LED AT TRIAL 21 A. Plaintiff 21 B. Defendants 30 C. Expert evidence 31 D. Documentary evidence 35 IV. ISSUES 36 V. ANALYSIS 38 A. Claims construction 38

(1) Applicable legal principles 38

(2) POSITA 42

(3) POSITA’s general knowledge 46

(4) Inventions at issue, according to experts 48

(5) Meaning and scope of claims of Patent 794 50

(6) Meaning and scope of claims of Patent 598 74 B. Alleged infringement 87

(1) Applicable legal principles 87

(2) QHR 89

(3) Patent 794 106

(4) Patent 598 125

C. Alleged invalidity 146

(1) Anticipation and obviousness: Applicable legal principle 146

(2) Patent 794 151

(3) Patent 598 170

(4) Overbreadth 189

(5) Insufficiency of disclosure 192 D. Right to compensation 198 I. INTRODUCTION [ 1 ] The dramatic evolution of communication and information technologies over the last 50 years has had a profound impact on our societies, often for the better, sometimes for the worse. Here as elsewhere in the world, this evolution has had repercussions in, among other fields, the world of health care services delivery. In particular, gone are the days when all medical and other information collected and recorded on a patient was kept only in paper format.

Thanks to massive investment by our governments, such information is now in almost all cases digitized and stored in computer infrastructures that give health professionals easy and meaningful access to it.

Everyone agrees that the computerization of patient records in our health systems is helping to deliver better health care at lower cost. [ 2 ] This case involves intellectual property issues related to this technological breakthrough in the context of the Quebec government’s implementation, in 2013, of the Dossier Santé Québec, or Québec Health Record [QHR], a computer tool allowing physicians and other professionals in Quebec’s health network [ translation ] " “to have access to information deemed essential for intervening quickly and ensuring quality follow-up with their patients” " (Joint Statement of Facts and Admissions at para 44 [Joint Statement of Facts]).

More specifically, the question raised in this case is whether, in so doing, the Quebec government infringed two inventions claimed by the plaintiff. There is also the corollary question of the validity of the monopoly thus claimed by the plaintiff. I. GENERAL BACKGROUND [ 3 ] The plaintiff is a medical doctor.

He also holds, under the Patent Act , RSC 1985, c P-4 [the Act ], Canadian patents No. 2,233,794 [Patent 794] (Exhibit TX-1) and No. 2,329,598 [Patent 598] (Exhibit TX-2), titled, respectively, " “Method and Apparatus for the Management of Medical Files” " and " “Method and Apparatus for the Management of Data Files” " . [ 4 ] According to the plaintiff, Patent 794 relates more specifically to a networked medical records system.

The idea of designing such a system came to him, he alleges, from his experience as an emergency room physician at the Centre hospitalier de l ’ Université de Montréal [the CHUM] in the 1990s. He says that, as the essence of his job was to make quick diagnoses, the information needed to do so within medically safe time frames was difficult to access because it was disseminated in a not very organized manner across several institutions and drowned amongst often irrelevant information.

This system, he continues, in the interest of efficiency and cost reduction, is designed to allow the attending medical staff to quickly access relevant medical information, by first providing a

summary of existing health information about the patient and then, if need be, detailed relevant information, regardless of where in the network this information was initially collected and stored. [ 5 ] As for Patent 598, the plaintiff argues that although it addresses the same problems as Patent 794, it innovates by focusing more specifically on a particular concept of the automatic updating of

summary medical information envisioned by Patent 794.

According to the plaintiff, Patent 598 also introduces a system that allows health and social services providers in the network to access the most recent medical data on a patient from their own smart phones, and users themselves to do likewise in relation to the most recent medical data concerning them. [ 6 ] The plaintiff claims that the Quebec government, through the Ministère de la Santé et des Services sociaux (ministry of health and social services) [MSSS] and the Régie de l ’ assurance maladie du Québec [RAMQ], a Crown corporation mandated to administer the programs of the Quebec health insurance plan [collectively, the " “defendants” " ], has infringed Patent 794 and Patent 598 by implementing the QHR. [ 7 ] As relief, he asks the Court to confirm the validity of the patents in question, declare that the defendants have infringed the patents, in whole or in part, directly or indirectly, and recognize that he is entitled to be compensated as a consequence of this infringement.

The plaintiff also claimed the right to punitive damages but abandoned the claim at trial. [ 8 ] The MSSS, which, under Quebec law, in this case the Act respecting the sharing of certain health information , CQLR c P-9.0001 [ ARSCHI ], has a mandate to establish and maintain the QHR, and RAMQ, which has a mandate to establish and maintain certain components, both deny any infringement, direct or indirect, of any of the patents in question and plead, in counterclaim, that said patents are invalid on the grounds of anticipation, obviousness, insufficiency of disclosure, lack of utility and/or overbreadth. [ 9 ] Following an order of the Court, dated August 8, 2016, obtained upon joint motion of the parties, the present proceeding was split, with the issues regarding the assessment of damages to be decided, if necessary, only after judgment is rendered on those relating to the infringement and the validity of the patents in question and to the plaintiff’s right, if applicable, to reasonable compensation.

II. DESCRIPTION OF PATENTS AT ISSUE [ 10 ] Patent 794 has nine (9) claims, three of which are independent claims ( claims 1, 6 and 9 ). The application to the Commissioner of Patents [Commissioner] to have this patent granted was filed by the plaintiff on April 1, 1998, and published on August 24, 1999. Said patent was issued on February 6, 2001; it was valid until April 1, 2018. [ 11 ] Patent 598 has (9) claims, three of which are independent claims ( claims 1, 19 and 31 ). The plaintiff filed his application with the Commissioner on December 22, 2000, and it was published on June 13, 2002.

Said patent was issued on February 24, 2015, and it is valid until December 22, 2020. [ 12 ] The " “priority” " date for Patent 794 is February 24, 1998, and for Patent 598, December 13, 2000.

[ 13 ] All these dates were admitted (Joint Statement of Facts at paras 5-6). A. Patent 794

(1) Description [ 14 ] Under

section 79 of the Patent Rules , SOR/96-423 [ Rules ], the abstract contained in a patent application, even though it cannot be taken into account in assessing the scope of the monopoly claimed, must be written in a way " “that allows the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use or uses of the invention” " . [ 15 ] The abstract of Patent 794 reads as follows: The present invention provides a network system for storage of medical records. The records are stored on a server in a database.

Each record includes two parts, namely a collection of data elements containing information of medical nature for the certain individual, and a plurality of pointers providing addresses or remote locations where reside other medical data for that particular individual. Each record also includes a data element indicative of the basic type of the medical data found at the location pointed to by the pointer. This arrangement permits a client workstation to download the record along with the set of pointers toward the remotely stored files.

The identification of the basic type of information that each pointer leads to allows the physician to select the ones of interest and thus avoid downloading massive amounts of data where only part of that data is needed at that time. In addition, this record structure allows statistical queries to be effected without the necessity of accessing the data behind the pointers. For instance, a query can be build based on keys one of which is the type of data that a pointer may lead to.

The query can thus be performed solely on the basis of they [ sic ] pointers and the remaining information held in the record. [ 16 ] The technical field to which the invention relates is described as follows in the specification for Patent 794 (Exhibit TX-1), which specification, in accordance with

section 27 of the Act , consists primarily of a descriptive part—also called a " “disclosure” " —and claims: The present invention relates to the field of information distribution systems.

More specifically, it pertains to a device and method for the electronic management of files within the medical and health education domains. [ 17 ] Under the heading " “Background of the Invention” " , the descriptive part of Patent 794 [Disclosure 794] defines certain technical terms deemed relevant to the understanding of the patent, namely: " “Client-Server” " , Intranet, " “Local Area Network” " [LAN], " “Wide Area Network” " [WAN], " “Open System” " , " “Pointer” " , and " “Standard Exchange Protocols” " .

Recent developments in the fields of information and technology and significant progress in the provision of information are noted.

In particular, it shows how this evolution is bringing about profound changes in the relationship between the hospital and academic fields, particularly with regard to medical archives and databases and the ability to consult, in a transparent manner, stored information and share it in real time. [ 18 ] Still under this heading, Disclosure 794 also deals with the limitations of prevailing practices regarding the storage of medical data in 1998, limitations linked to the fact that this storage is generally done locally and that the systems in place locally do not allow complete access to patient information from different sources, thus complicating the task of emergency room physicians.

However, combining these independent local networks into a single integrated network is not the solution to this problem, for a number of reasons, particularly the storage capacity of this integrated network given the high volume of information which would be stored there, and the need for a common language allowing this single integrated network to communicate with local networks. This

section of the disclosure concludes with the remark that there is a need to develop a method to access distributed medical records in a wider network and other external data in order to increase the number of sources of information available to physicians. [ 19 ] The objectives and the

summary of the invention are then described in these terms: An object of the present invention is to provide a system and method for electronic management of files that contain medical data. Another object of the invention is a computer readable storage medium containing a data structure that holds medical information.

As embodied and broadly described herein, the invention provides a computer readable storage medium holding a data structure, said data structure comprising at least one record associated with a certain individual, said record including : A collection of data elements containing information of medical nature for the certain individual; At least one pointer, said pointer including a first component and a second component, said first component being indicative of an address of a location containing additional medical data for the individual, said second component being indicative of the basic nature of the medical data at the location pointed to by the first component, said address being in a form such that a machine can access the location and import the medical data from the location . [Emphasis added.] [ 20 ] According to the preferred embodiment described at pages 6 and 7 of Disclosure 794 (Exhibit TX-1), the " “computer readable storage medium” " is a database containing a large volume of medical records related to different users of the health network.

The data elements in these records are intended to be stored in such a way that they can be easily accessed, and relate to medical information that is unlikely to change over the course of the user’s life. They can also contain identifiers to distinguish one record from another. Each record also contains " “pointers” " linked to remote sites where digitized information on an individual’s information is stored, such as blood test or electrocardiogram results.

Each pointer in turn has at least two components, namely " “an address part that is machine readable to import the data residing [at] the target location and also a second part that is data indicative of the basic nature of the information held remotely”. " [ 21 ] In practical terms, this means the database can be queried remotely, from a network, in such a way as to extract the record relating to an individual. This operation is described as follows: . . . Typically, this operation can be performed over a network, where a client workstation requests the record from a server managing the database.

The server will transfer over the network links [to] the record that will be displayed on the client workstation. The information displayed is the collection of data elements permitting to identify the person and also providing the medical data that is more or less of static nature. The operator at the workstation, that would typically be a physician, also sees then the existence of one or more pointers to files holding additional medical data. The second part of each pointer indicates to the physician the basic nature of the data pointed to.

He can therefore select the pointers of interest in the global set of pointers for that record and import the data through any appropriate data transfer protocol. [ 22 ] This arrangement therefore allows the establishment of a distributed electronic medical records system where the bulk of the data (if it resides in

remote sites from the central database, i.e., in most cases, where the data is collected, such as in a hospital facility) remains easily accessible through the arrangement’s pointer structure. [ 23 ] Disclosure 794 then gives a brief description and a detailed description of the ten (10) figures contained in that patent.

In particular, Figure 3 is intended to represent a network-shared medical record system incorporating the principles of the invention, an important component of which is, the description says, the " “Network Distributed Shared Medical Record (NDSMR) System” " [NDSMR]: [ 24 ] Figure 5 provides a general representation of a client-server architecture implementing the NDSMR system; it shows, graphically, the interactions between the client, the server and the NDSMR database:

(2) Claims [ 25 ] As I have already stated, there are nine (9) claims in Patent 794. Initially, the plaintiff alleged infringement of each and every one of these claims. However, he no longer claims infringement of claim 9 .

Of the remaining eight claims, two, I recall, are independent claims, claims 1 and 6 . [ 26 ] Claim 1 repeats verbatim the excerpt from Disclosure 794 that I pointed out in paragraph 19 of these reasons. [ 27 ] Claim 2 specifies that the record contained in the " “data structure” " of the " “computer readable storage medium” " , to which claim 1 refers, includes a " “plurality of pointers” " , one of which includes a first component which is indicative of an address of a first " “location” " and another which also includes a first component which is indicative of an address of a second " “remote” " location from the first. [ 28 ] Claim 3 , meanwhile, specifies that the first and second locations, to which claim 2 refers, correspond to separate " “nodes” " in a network.

As for claim 4 , it states that the " “computer readable storage medium” " referred to in claim 3 comprises a multitude of " “records” " . Finally, claim 5 specifies that this " “computer readable storage medium” " will " “reside” " on a " “server” " within a network. [ 29 ] Claim 6 relates to the concept of a " “network server” " and specifies certain components, namely a " “processor” " and " “memory” " . It also specifies that the memory includes, in turn, (

i) a " “plurality of records” " containing medical information on more than one patient and at least one pointer comprising a first and a second component, as well as (ii) a program element capable, at the request of a health and social services provider connected to the server via a communication channel, of locating one record among the plurality of " “records” " stored by the memory, and to communicate this record to the client, via this same communication channel. [ 30 ] Claims 7 and 8, which are dependent on claim 6 , are similar to claims 2 and 3 except that they are related to the concept of a " “server” " as defined in claim 6 , rather than that of " “computer readable storage medium” " , as defined in claim 1 .

B. Patent 598

(1) Description [ 31 ] The abstract of Patent 598 is for all practical purposes identical to that of Patent 794. The very few differences between them are minor and

essentially semantic. As the plaintiff stated, Patent 598 addresses the same issues as Patent 794. The descriptive part of the specification of said patent [Disclosure 598] (Exhibit TX-2) also covers large parts of Disclosure 794. The figures are exactly the same. [ 32 ] However, Disclosure 598 differs in some respects. [ 33 ] First, it introduces the notions of " “Unique Identifier” " , " “Uniform Resource Locator” " (URL) and " “Data Field” " . The " “Summary of the Invention” " reads as follows: An object of the present invention is to provide a system and method for electronic management of data files.

Another object of the invention is a computer readable storage medium containing a data structure that holds information. . . .

As embodied and broadly described herein, the invention provides a computer readable storage medium holding a data structure, said data structure comprising at least one record associated with a certain individual, said record including: - At least one unique identifier associated strictly with the certain individual; - At least one pointer, said pointer using the URL addressing system to indicate the address of a location containing data for the certain individual, said address being in a form such that a machine can access the location and import the data from the location; - At least one data field , said data field associated with said pointer, said data field being indicative of the basic nature of the data at the location pointed to by the said pointer. [Emphasis added.] [ 34 ] It also introduces a concept allowing doctors or even patients themselves to access data stored in the NDSMR database, by means of a " “Personal Communication System” " , such as a smartphone, or by means of a " “Smart Card” " . [ 35 ] Finally, the description introduces a concept of automatic updating of medical information distributed within a network: As embodied and broadly described therein, the invention provides a method for updating medical information distributed across a network system, the network system storing a plurality of medical records associated with respective individuals, the network system including a plurality of nodes connected to each other by data communication paths, the plurality of nodes including at least a first node and a second node, the first node storing a

summary component of a medical record associated with a first individual, the

summary component including a plurality of information items of medical nature relating to the first individual, the plurality of information items conveying:

a) identification of medical tests performed on the first individual;

b) reference to remote medical data stored at one or more nodes of the network system that are remote from the first node, the remote medical data conveying results of one or more medical tests identified at (a); the method including: (

a) performing at the second node a medical information update process, which includes: (

i) receiving at the second node new medical data; (ii) processing the new medical data to identify new medical information associated with the first individual; (iii) initiating at the second node a data transmission to the first node, the data transmission conveying to the first node data to update the

summary component of the medical record associated with the first individual based on the processed new medical data; (

b) receiving at the first node the data to update the

summary component of the medical record associated with the first individual; (

c) creating a new information item in the

summary component of the medical record based on the processed new medical data.

(2) Claims [ 36 ] Patent 598, I recall, has forty-three (43) claims, three of which are independent claims ( claims 1, 19 and 31 ). At the end of the trial, the plaintiff amended the list of claims that he alleged had been violated by the defendants following the introduction of the QHR.

The claims that are the subject of the infringement allegations are now the following: 1, 2, 4, 9, 10, 13 to 16, 18 to 22, 28 to 31, 33 to 36 and 39 to 42 . [ 37 ] Claim 1 refers to a " “method” " for performing " “automatic updates” " of " “summary medical information for a first patient” " stored at a first " “node” " of a " “data network storing medical information in a distributed fashion” " .

This network also includes a second node where new medical information concerning this patient is recorded, the first node being configured to receive information from the second node over a communication path linking the two nodes. [ 38 ] Claim 1 goes on to state that the

summary medical information to which it relates includes (i) " “a plurality of information items identifying medical care services dispensed to the first patient” " and (ii) " “a plurality of pointers associated with respective information items of the plurality of information items” " , each pointer " “identifying a location in the data network that is remote from the first node” " and containing additional medical information for the medical care service identified by the information item associated with the pointer. [ 39 ] Finally, claim 1 specifies that the method to which it refers includes at least three actions: a . the first, " “pushing” " an update of new medical information stored at the second node to the first node, " “including processing the new medical information to derive update data” " and " “initiating at the second node a data transmission to the first node, the data transmission conveying to the first node the update data” " ; b . the second, " “receiving at the first node the update data sent by the second node” " ; and c . the third, " “creating at the first node a new information item based on the update data” " . [ 40 ] Claims 2 to 18 are dependent on claim 1 .

Claim 2 states that the " “medical care services” " to which claim 1 refers include " “a medical diagnostic test performed on the first patient” " . Claim 4 specifies that this test can be an " “imaging test” " .

[ 41 ] Claim 9 states that for the purposes of the method described in claims 1 to 7, wherein " “the second node” " is implemented by a " “server arrangement” " . Meanwhile, claim 10 specifies that for the purposes of this same method, the " “first node” " includes " “a microprocessor associated with a machine-readable storage” " , with " “the

summary medical information being stored in the machine-readable storage” " . [ 42 ] Claim 13 states that, for the purposes of the method described in claims 1 to 12 , " “the second node stores medical information about a plurality of patients” " . [ 43 ] Claims 14 to 16 deal with the " “nominative information and non-nominative information” " contained in a patient’s medical record of and stored in the " “data network” " . Claim 15 specifies that those two types of information are " “stored at separate locations of the data network” " .

As for claim 16 , it specifies that the " “second node stores non-nominative information for the first patient without storing nominative information for the first patient” " . [ 44 ] Claim 18, the last of the claims dependent on claim 1 , states that the update contemplated by the method defined in any one of claims 1 to 17 " “conveys an identifier distinguishing the first patient from other patients” " . [ 45 ] Claim 19 is the second independent claim in Patent 598. It is about a system, not a method like claim 1 .

This system consists of " “[a] server arrangement in a data network . . . storing a plurality of medical records for respective patients in a distributed fashion” " . The server arrangement is configured for performing automatic updates of

summary medical information on a patient stored at a node of the data network that is remote from the server arrangement, when new medical information for the patient is recorded at the server arrangement. [ 46 ] As is the case with the method proposed by claim 1 , the node where the patient’s

summary medical information is stored does not contain all the information held in that patient’s medical file, and this

summary information also includes (

i) a plurality of information items identifying the medical care services dispensed to the patient and (ii) a plurality of pointers associated with those information items. Again, each pointer is used to identify a location in the data network (

i) that is remote from the node where the patient’s

summary medical information is stored and (ii) that contains additional medical information for the medical care service identified by the information items to which each pointer among this plurality of pointers is associated. [ 47 ] Still according to claim 19 , the server arrangement is configured so that the new medical information stored in it is pushed to the node.

This includes, as is the case with the method described in claim 1 , " “processing the new medical information to derive update data” " and " “initiating at the server arrangement a data transmission to the node, the data transmission conveying to the node the update data” " .

This claim also states that this update data includes " “an identifier distinguishing the first patient from other patients” " and " “information identifying the new medical care service dispensed to the first patient” " . [ 48 ] As in claims 2 to 4 , claims 20 to 22 specify that the " “medical care services” " referred to in claim 19 include " “a medical diagnostic test performed on the first patient” " , and that this test may be an " “imaging test” " or a " “laboratory test” " . [ 49 ] Claims 28 to 30 , like claims 14 to 16 , deal with the " “nominative information and non-nominative information” " contained in the medical record of a patient and stored in " “the data network” " .

Claim 29 specifies that those two types of information are " “stored at separate locations of the data network” " . As for claim 30 , it specifies that " “the server arrangement stores [non-nominative] medical information . . . without storing nominative information” " . [ 50 ] Claim 31 is the third and final independent claim. As in claim 1 , it describes a method. This time, this other method deals with the update of medical information distributed through a network system, with " “the network system storing a plurality of medical records associated with respective individuals” " .

This system includes " “a plurality of nodes” " connected to each other by " “data communication paths” " . [ 51 ] This plurality of nodes includes at least a first and a second node. The first node stores " “a

summary component of a medical record associated with the first individual” " , which includes " “a plurality of information items of medical kind relating to the first individual” " , including (

i) an " “identification of the nature of medical tests performed on the first patient” " and (ii) " “references to remote medical data stored at one or more nodes of the network system that are remote from the first node, the remote medical data conveying results of one or more medical tests” " contained in the

summary of the patient’s medical record. [ 52 ] As for the second node, the method contemplated in claim 31 provides that this is where the process of updating the new medical information gets under way ( " “the method including performing at a second node a medical information update process” " ), insofar as the second node is where the system is (i) " “receiving . . . new medical data” " ; (ii) " “processing the new medical data to identify new medical information associated with the first individual” " ; and (iii) initiating the transmission of an update of that information to the first node. This method also provides for the creation of a new information item in the

summary of the patient’s medical record, based on the new medical information, as processed. Contrary to claims 1 and 19 , there is no mention to the effect that the update contemplated in this claim is automatic. [ 53 ] Claims 33 and 34 duplicate, for the purposes of claim 31, claims 9 and 10 , which I have already discussed in paragraph 41 of these reasons.

As for claims 35 and 36 , they specify, in the same way as do claims 3, 4, 21 and 22 , what the term " “medical test” " includes. [ 54 ] Meanwhile, claim 39 specifies that, for the purposes of the method described in claims 31 to 38 , the second node " “stores medical information about a plurality of individuals” " . [ 55 ] Finally, claims 40 to 42 deal with, in exactly the same way as do claims 14 to 16 , the location of the nominative and non-nominative information about a patient stored in the data network. III. OVERVIEW OF EVIDENCE LED AT TRIAL [ 56 ] The parties called five witnesses in total. A.

Plaintiff [ 57 ] The plaintiff was the only one on his side to testify to facts.

He testified mainly about his work experience, his interest in computer science, the development of the inventions covered by the two patents in question, his attempts to commercialize the invention behind Patent 794, and his interactions with the Quebec government in doing so. [ 58 ] This is what I take from his examination-in-chief. [ 59 ] A graduate of the faculty of medicine at the University of Montréal at the turn of the 1980s, it was in 1989 that the plaintiff made his debut as an emergency room physician in one of three institutions— Hôpital St-Luc —which would be merged in the early 1990s to create the CHUM. [ 60 ] His idea of a network-shared medical records system comes from the challenges faced by emergency room physicians, a discipline where the

window of intervention is limited by time and where, to make the right diagnosis, quick access to relevant medical information on the patient is crucial. This access is problematic for a number of reasons. First, patients often do not know their medical history or, when they do, are unable to give details given their condition when they arrive in the emergency room. Second, patient medical information is often scattered over several points on the network.

A CHUM patient, for example, can have up to nine files in his or her name if that patient has been seen in each of the three CHUM facilities and has undergone medical tests, such as laboratory tests or imaging tests. [ 61 ] Moreover, the information concerning a patient does not exist in

summary form. The trend at the time was to create one record per facility and record all patient information in it, from the attending physician’s or nursing staff’s notes to information of a clinical-administrative nature. This same tendency was observed when electronic medical files first made their appearance. In other words, the tendency was towards complete or, to borrow the plaintiff’s expression, [ translation] " “wall-to-wall” " digitization of the information that an institution holds on a given patient; the information is [ translation] " “stacked” " , says the plaintiff, without any particular structure and without a

summary providing the emergency room physician, in particular, with the [ translation] " “longitudinal” " (i.e., chronological) trajectory of the patient in terms of diagnoses and some of the most relevant pieces of information, such as laboratory and imaging tests. [ 62 ] Added to this is the fact that even when it is digitized, it is often not possible to consult the information held by an institution that is not the same as the attending physician’s, since each institution has its own system with its own computer language.

In other words, when it comes to information technology, the institutions in many cases do not talk to each other. [ 63 ] The idea behind Patent 794 also comes from the plaintiff’s interest in computer science, a subject in which he took a few courses while studying biophysics before starting his studies in medicine. This interest led him, in the mid-1990s, to set up a company — Communications MedNet — to develop an Internet-based medical education product.

Around the same time, he was involved in organizing a conference — Medicine 2001 — which brought together, in particular, representatives of the governments of Quebec and Canada as well as representatives of foreign and international organizations such as NASA and the International Society for Telemedicine. During the three-day conference, new technologies and their application to the field of medicine were discussed. [ 64 ] In his examination-in-chief, the plaintiff described the concept behind the Patent 794: [ TRANSLATION ] Mr.

BESSETTE . . . what I quickly realized is that rather than going back and forth between all the files spread amongst the establishments, it would probably be better to have a kind of

summary that tells us about the patient in a longitudinal way, what his or her trajectory in terms of diagnoses and certain relevant information such as imagery. . . . LEBLANC J.: A sort of chronology? MR. BESSETTE: Chronology. You’re right. So, organize the information chronologically and also in a

summary way. Very quickly, it also occurred to me that we could not necessarily have all the information on the

summary sheet because there is too much information and sometimes there is no need to consult it. For example, if I have the results of a CT scan, do I need to have all those pictures as an emergency room doctor, when I’m not the one who interprets them, where it’s up to a radiologist to interpret them? I only need to have the report. I could also have the extra images, but what I mean is that I was making a distinction between the fact that I wanted to know if such an exam existed and how to get information on that exam; or would I need to dig a little more? So, a kind of

summary where I could dig deeper on demand by going to further layer, or at least find a little more specialized information. And that’s what we identified as a pointer, and the pointer had to have two distinct characters. Potentially, it had to point to a place where we could get the information and give information on the nature of the information I was going to look for, for example, if what I am looking for is an X-ray, is it an X-ray of the lungs? Is it an X-ray of the ankle? Is it an X-ray of the hip?

Because if someone comes to see me because he has a hip problem, I do not necessarily have to look at his lung X-ray. I can compare the hip with the hip. . . . So basically, the concept that was developed . . . that I developed in ‘98 saying to myself, if I had this in the emergency room, it would solve a lot of problems. It would allow me to have a kind of

summary dashboard of the history of a patient and then be able to make a much faster decision. So, this is pretty much the genesis, I would say, of the invention’s design. (Transcripts, May 28, 2018, at pp 86-89) [ 65 ] The plaintiff stated that, from a technical point of view, they had to find a method for extracting information that was encapsulated in a particular computer format, depending on the institution where it was digitized or kept, make a useful

summary of that information and archive everything using an [ translation] " “open” " protocol, that is, one that ensures accessibility regardless of the institution where the doctor consults it (Transcripts, May 28, 2018, at pp 93-95). [ 66 ] In the fall of 1998, the plaintiff took steps to obtain institutional, financial and technical support for his network-shared medical records system project.

Those steps were first taken in connection with a pilot project in pediatric cardiology to make computerized patient records accessible through an open system so that the information in these records could be shared between the various pediatric cardiology departments in Quebec.

This project was supported by pediatric cardiologist Alain Cloutier of the Centre hospitalier universitaire de Québec (Exhibit TX-121). [ 67 ] With this support, the plaintiff contacted the company then mandated by the MSSS to manage the Quebec health network’s shared information assets and to provide technical support for the network’s institutions. He was looking for [ translation ] " “structuring support within the network” " insofar as developing the pilot project required equipment belonging to the (public) health network.

On April 15, 1999, this company, SOGIQUE, confirmed its interest in joining the pilot project. It saw its collaboration in the project as a way of ensuring that the project would complement [ translation ] " “the work of the various provincial committees currently under development” " , particularly those related to [ translation ] " “the deployment of the " " Réseau de télécommunications sociosanitaires " " (RTSS), the generic query/result system and the shareable patient record” " (Exhibit TX-122). SOGIQUE’s support

extended to seeking out the necessary financing to carry out the project. Marketing the pilot project outside Quebec was also part of the discussion and of SOGIQUE’s interest in the project (Exhibit TX-122). [ 68 ] In September 1999, Hewlett-Packard (Canada), a company specializing in the development of electronic equipment, joined the plaintiff’s pilot project. Its association with the project took the form of a contribution, in money and services, totalling $750,000.

Hewlett-Packard also committed to seeking input from strategic partners, including Microsoft (Exhibit TX-123). [ 69 ] Meanwhile, the plaintiff, through his legal counsel at the time, requested a meeting with the then Deputy Premier of Quebec and Minister of Finance, the late Bernard Landry. He hoped that Mr. Landry could facilitate the implementation of his project and [ translation ] " “thereby foster the development of a strategic sector of the economy of tomorrow that would confirm Quebec’s position in the pharmaceutical and biomedical sectors” " (Exhibit TX-124).

This meeting took place at the end of fall 1999. Representatives from Hewlett-Packard and Microsoft attended. The Deputy Prime Minister was receptive to the plaintiff’s pilot project and suggested that he get in touch with the people at Investissement Québec , then the Société générale de financement . [ 70 ] Also in the fall of 1999, the plaintiff, thinking that if his project was good for pediatric cardiology it could also be good for adult cardiology, gauged the interest of the Montréal Heart Institute.

On October 21, 1999, the Institute confirmed its interest in partnering with the plaintiff and his partners, Hewlett-Packard and Microsoft, [ TRANSLATION ] " “ " " to develop and test a network-shared multimedia medical records pilot project adapted to cardiology. " " ” " To this end, it mandated the plaintiff [ TRANSLATION ] " “to make all the representations necessary for obtaining grants that may facilitate the implementation of this project, in particular with . . . Health Canada’s health infostructure program” " .

The Institute saw this as a project that [ TRANSLATION ] " “ " " should allow a better flow of medical information and, consequently, better management of provincial resources in cardiology " " ” " (Exhibit TX-125). [ 71 ] Deciding that he needed technical support to better carry out his project, the plaintiff also contacted, around the same time, the people from Conseillers en gestion et informatique CGI Inc [CGI] to propose a partnership.

On January 28, 2000, CGI signaled its interest in the " [translation] “pilot project for the development of an integrated shared medical records and networked information retrieval system (DMMPR)” " . CGI said this project was [ TRANSLATION ] " “an important milestone in the modernization strategy of the health and social services network of the MSSS” " and would not present any " “major or extremely costly problems” " in terms of its implementation (Exhibit TX-127). On January 31, 2000, CGI confirmed the terms of the partnership in a letter countersigned by the plaintiff (Exhibit TX-128).

Following this letter, CGI planned to participate in the meeting to be held [ translation] " “soon” " with Investissement Québec. [ 72 ] At approximately the same time, the plaintiff received support from the Association des médecins d ’ urgence du Québec (Quebec association of emergency physicians) for the CGI pilot project.

For the Association, access to and sharing of relevant clinical information [ translation ] " “is without a shadow of a doubt, in [its] view, a fundamental problem in our health care network” " , making [ translation ] " “the continuity of care very difficult” " while entailing [ translation ] " “significant costs”. " According to the Association, this is a particularly significant problem in the emergency room, [ translation ] " “where treatment largely depends on the ability to access the patient’s medical history” " (Exhibit TX-126). [ 73 ] The plaintiff met with the people of Investissement Québec twice.

The first meeting went well, but not the second, held in February 2000. In terms of support, nothing concrete emerged from those two meetings except that the plaintiff was warned that to go any further, his project had to first receive [ translation ] " “the endorsement of information technology in the field of health” " (Transcripts, May 28, 2018, at pp 109-111). [ 74 ] This is how the plaintiff got in touch with the director of information technology at the MSSS, Mr. Roch Beauchemin , to present the project to him and obtain his ministry’s approval.

Communication between the two men was done mostly by telephone and email. The plaintiff also believes that he met with Mr. Beauchemin once. However, he was unable to track down the plan or draft project sent to Mr. Beauchemin for the purpose of their discussions, although he believes that it was a preliminary version of a document that he went on to present a few months later to a member of the office of Deputy Prime Minister Landry in a final effort to, so to speak, save his project (Exhibit TX-135). [ 75 ] On May 26, 2000, Mr.

Beauchemin informed the plaintiff that his directorate [ translation ] " “cannot approve the project” " . According to Mr.

Beauchemin , the plaintiff’s project had the following shortcomings: [ translation] - No business plan; - No real technological architecture; - No feasibility study supporting the process; - Incomplete preliminary analysis; - No risk analysis; - Several complementary files needed to be set up beforehand in Quebec (DPP and consent (SOGIQUE), two Montréal CHUs project, Ste- Justine, Mauricie/Centre-du-Québec project); - Partnership with the Heart Institute needed to be demonstrated; - Several aspects were barely or not at all explored, such as all aspects of user consent to file sharing and significant weakness in the privacy/security/data access aspects; - A lack of knowledge of the RTSS file, leading to certain misinterpretations; - Many questions on the sustainability of the project.

The idea of having archivists transcribe the

summary sheets of the records to create the first bastion host of the shareable patient record seems highly debatable to me. (Exhibit TX-130). [ 76 ] When he received this letter, the plaintiff thought it was obvious that the project had been rejected. It was [ translation ] " “dead in the water” " , he would say (Transcripts, May 28, 2018, p 118). In a last ditch attempt, he once again asked Deputy Premier Landry to intervene (Exhibit TX-131). Attached to his letter is Exhibit TX-135, to which I have already referred. This exhibit, which is intended to be an [ translation] " “executive

summary of the project” " , deals for the most part with the economic and budgetary advantages of the [ translation ] " “implantation of a

summary medical record in the form of text shared over the entire health network” " . [ 77 ] Mr. Landy’s office did not take any action in response to the plaintiff’s letter. Although the interest in a computerized medical file, mainly in minimally shareable format, was still there, at least within the CHUM’s department of emergency medicine, as evidenced by a letter to the plaintiff dated

October 3, 2001, from the head of that department (Exhibit TX-133), the plaintiff’s project would not materialize, either in the form of a pilot project in pediatric cardiology or in the more general form of a network-shared medical records system. B. Defendants [ 78 ] The defendants called two ordinary witnesses, Mr. Vincent Belzil and Ms. Émilie Brisson , both officials at RAMQ and the MSSS, respectively. Mr. Belzil discussed the development of the QHR, the functional and infrastructural choices that marked this development and its current operation.

He covered all the components of the QHR with the exception of the [ translation] " “imaging domain” " component, which was dealt with, in a similar light, by Ms. Brisson . [ 79 ] To a very large extent, the information provided by these two witnesses had already been admitted or summarizes in large part the excerpts of the earlier examinations in this case and in a related case initiated by the plaintiff in the Superior Court of Quebec (No. 500-17-074669-121). These are excerpts from the examination for discovery of Mr. Belzil, held in this case in November 2017; the examination for discovery of Mr.

Michel Vézina, also held in this case in November 2017; and the examinations for discovery of Messrs. Guy Laliberté and Michel Baron , held in this related file in December 2013. At the time of their respective examinations, Messrs. Vézina, Laliberté and Baron were, in that order, senior advisor at CGI, head of the information technology architecture and guidance directorate at the Direction générale des technologies d ’ information (information technology branch) of the MSSS, and strategic advisor to that branch.

All these excerpts from the examinations for discovery in the Superior Court record have been incorporated by reference into this record and were produced by the plaintiff at trial. They were filed in a bundle as Exhibit P-1. [ 80 ] The testimony of Mr. Belzil and Ms. Brisson is therefore, for all intents and purposes, undisputed, which explains, as counsel for the plaintiff pointed out in oral arguments, why they were only very briefly cross-examined.

I will nevertheless return to the testimony of these two witnesses as well as to the admissions regarding the QHR found in the Joint Statement of Facts, all of which are considerable, when, as part of the analysis of the infringement allegation, the QHR is discussed in more detail. [ 81 ] The defendants have also produced in this case excerpts from the plaintiff’s examination for discovery, held on June 11, 2013, in the context of the related file in the Superior Court of Quebec which I just mentioned. They are designated as Exhibit D-2. C.

Expert evidence [ 82 ] Two expert witnesses squared off against each other in this case, namely Mr. Cyrille Thilloy, for the plaintiff, and Mr. Alain April, for the defendants. These two experts produced a total of five reports. They first filed their respective main reports, both dated March 9, 2018. Mr. Thilloy’s report dealt with the

interpretation of the claims of each of the two patents at issue and the infringement (Exhibit P-2), while Mr. April’s report addressed the

interpretation of those same claims and the validity of said patents (Exhibit D-3). Each expert responded to the other on April 9, 2018, with Mr. Thilloy submitting a rebuttal opinion on Mr. April’s report on the validity of the patents (Exhibit P-3) and Mr. April doing the same in regard to Mr. Thilloy’s report on infringement (Exhibit D-8). Lastly, on April 30, 2018, Mr. Thilloy filed a report in reply to Mr. April’s rebuttal opinion, mainly to give his opinion on documentary evidence on the functioning of the QHR to which he, unlike Mr.

April, had no access when preparing his two previous reports (Exhibit P-4). [ 83 ] Mr. Thilloy holds a bachelor’s degree in mathematical computer science from Laval University and a master’s degree in computer science from the same university. Those two degrees were obtained in 1989 and 1990, respectively. Since graduating from university, Mr. Thilloy has worked in the field of information technology with companies in Quebec, the rest of Canada and abroad.

He has worked in a variety of fields over the course of his career, including banking, telecommunications, the media, entertainment, e-commerce, academia and health. [ 84 ] In 1995, he helped found a company specializing in telecommunications via the Internet. He held the title of Vice-President, Research and Development. In 2000, the company was acquired by an American company specializing in the development of software and hardware solutions for telephony and video over the Internet. Mr. Thilloy was the Head of Technology.

In this role, he was responsible for developing the " “end-to-end” " architecture of the company’s product line and for securing patent protection for the company’s innovations. [ 85 ] Starting in 2005, Mr. Thilloy became a consultant, on behalf of various Quebec and Canadian companies, as a solutions architect for specific technological projects. His practical experience covers the architecture of information systems, including the applications that make up those systems, as well as business and enterprise architecture. He is also involved in organizations that work to standardize the industry.

In addition, he writes articles on behalf of a leading publication in the field of service-oriented architecture. [ 86 ] For his part, in April 1983, Mr. April obtained a bachelor’s degree in computer science from the University of Quebec at Montréal. After obtaining his diploma, he was recruited by Desjardins Group as a junior programmer. As such, he worked to design and develop the cooperative’s first " “distributed” " , that is to say " “client-server” " , software for the decentralized management of loans.

During this same period, he pursued a master’s degree with specialization in distributed information systems. In 1986, he was offered a job at Bell Canada, which was looking to set up a working group focused on new client-server technologies. In his first four years at Bell, he was responsible for a team that managed client-server projects involving both central and decentralized servers. Subsequently, he was named project manager for software development involving personal computers and client-server systems. [ 87 ] In 2003, Mr.

April accepted a professorship in software engineering at the University of Quebec at Montréal’s higher school of technology, the École de technologie supérieure . In 2005, he obtained his PhD in software engineering. Concurrently with his teaching activities, he has been developing various computer applications, particularly in the health field. [ 88 ] Prior to the trial, the parties agreed not to challenge the proposed qualifications of their respective experts. The proposed qualifications for Mr.

Thilloy are those of expert [ translation ] " “in information technology and communications architecture solutions”. " The defendants, for their part, proposed that Mr. April be recognized as an expert [ translation ] " “in the field of application software development and database design”. " [ 89 ] I recognized Messrs. Thilloy and April as qualified experts in accordance with the parameters proposed by the parties. Although each party is asking me to disregard the opinion of the other party’s expert, it is not because they feel they are not qualified to give opinions on the issues in dispute.

In one case, that of Mr. Thilloy, it is alleged that he has been an advocate for his client’s cause and therefore does not have the arm ’ s length distance necessary to objectively assist the Court. In the other case, that of Mr. April, it is argued that he did not approach these issues from the perspective required by the applicable legal framework and that his opinion is therefore of no use. I will come back to this later when I discuss the evidence offered by each of them, in the analysis of the issues. D.

Documentary evidence [ 90 ] The parties produced documentary evidence, public and confidential, totalling 326 exhibits (filed as exhibits TX) divided into 26 volumes. With a few exceptions, mainly when the date of the document was problematic, the authenticity of said documents was admitted on both sides, so that those

documents could be filed in evidence without further formalities. Given the materiality of this evidence, this greatly facilitated the trial. This is to the credit of counsel in this case. [ 91 ] Among this documentary evidence is a video recording of a presentation on the general functioning of the QHR and the functioning of the [ translation] " “pharmacological profile” " , [ translation] " “laboratory” " and [ translation] " “medical imaging” components, " organized by the defendants for the benefit of the plaintiff and his counsel.

This presentation was made in 2015 by officials of the MSSS and RAMQ, in connection with the related file brought before the Superior Court of Quebec. The relevant excerpts from this presentation are found in exhibits TX-323 through 326. [ 92 ] A confidentiality order, intended to protect the confidential information filed in the record, was made on October 5, 2016. It was renewed on May 22, 2018, a few days before the opening of the trial.

A confidential draft decision was therefore sent to the parties on February 15, 2019, to enable them to propose to me, if necessary, any redaction required for the release of the public version of said decision. An initial proposal in which I was asked to redact, in their entirety, a total of 16 paragraphs from the confidential draft was made to me on February 27, 2019, by the defendants. In response to reservations expressed by the plaintiff with respect to this proposal, I invited the parties to a teleconference, which was held on March 4, 2019.

Following this teleconference, the parties were given an additional three weeks to submit a new redaction proposal to the Court. This new, more limited and more focused proposal, to which the plaintiff consents, was received on March 29, 2019. It seems reasonable to me and is therefore accepted. Two versions of these reasons, one public, the other confidential, will be issued simultaneously. IV. ISSUES [ 93 ] This case raises the following issues: a .

Have claims 1 to 8 of Patent 794 and 1, 2, 4, 9, 10, 13 to 16, 18 to 22, 28 to 31, 33 to 36 and 39 to 42 of Patent 598 been infringed directly or by inducement, because of the establishment of the QHR by the defendants? b . If so, are said claims nevertheless invalid on the grounds of anticipation, obviousness, insufficiency of the disclosure, lack of utility and/or overbreadth? c .

If not, is the plaintiff entitled to damages or an accounting of profits for the infringement on patents 794 and 598 and, in addition, the payment of reasonable compensation to the plaintiff within the meaning of subsection 55(2) of the Act for the period before the grant of Patent 598? [ 94 ] Since consideration of infringement and validity issues is, however, dependent on the construction of the patent claims in suit ( Whirlpool Corp. v Camco Inc , 2000 SCC 67 at para 43 [ Camco ] ), I will first interpret the contentious claims of each patent.

To do so, I will need to profile the " “person skilled in the art” " [POSITA] and determine the level of common general knowledge in the field related to the two disputed inventions that he was supposed to possess on the " “relevant date” " that is, the date of publication of each patent application, since it is from the perspective of this fictitious, or notional, person, at that date, that the claims must be construed. [ 95 ] I note that in their respective defences and counterclaims, the defendants argued the absence of a legal relationship, based on

article 96 of Quebec’s Code of Civil Procedure , CQLR c C-25.01 , which provides as follows: 96. An application pertaining to the rights and obligations of the Government must be directed against the Attorney General of Québec. An application pertaining to the rights and obligations of a public body or of a public officer or office holder who is called on to make changes to

an act or a register must be directed against the body or person concerned. " " 96. La demande qui porte sur les droits et obligations du gouvernement est dirigée contre le procureur général du Québec.

Celle qui porte sur les droits et obligations d’un organisme public ou d’un officier public ou d’un titulaire d’une charge, auxquels il est demandé d’agir pour modifier un acte ou un registre, doit être dirigée directement contre eux. [ 96 ] More specifically, the defendants argue that computerized or electronic medical records in Quebec are under the jurisdiction of the various health and social services institutions where they are held, and not under that of the MSSS or RAMQ, such that neither one nor the other can be liable for the acts complained of in this case. [ 97 ] I understood at trial that this defence, raised in the context of the related proceedings instituted by the plaintiff in the Superior Court of Quebec, had somehow been abandoned in this Court. [ 98 ] I recall in this regard that under

section 2.1 of the Act , this Act is binding on Her Majesty in right of both Canada and a province. Moreover, neither of the parties has claimed, and for good reason, that this Court did not have jurisdiction to hear this dispute. V. ANALYSIS A. Claims construction

(1) Applicable legal principles [ 99 ] Under

section 2 of the Act , a " “patent” " is defined as " “letters patent covering an invention” " , that is, covering " “any new and useful art, process, machine, manufacture or composition of matter, or any new and any art, process, machine, manufacture or composition of matter” " ( " “ " " toute réalisation, tout procédé, toute machine, fabrication ou composition de matières, ainsi que tout perfectionnement de l’un d’eux, présentant le caractère de la nouveauté et de l’utilité " " ” " ). [ 100 ] According to

section 42 of the Act , the grant of a patent confers to the patentee " “the exclusive right, privilege and liberty of making, constructing and using the invention and selling to the others to be used, subject to adjudication in respect thereof before any court of competent jurisdiction " " ” " . Once granted, the patent, in the absence of any evidence to the contrary, is valid and avails its holder the holder’s legal representatives for the term prescribed by the Act ( subsection 43(2) ).

This term is 20 years from the filing date of the application where the application for the issued patent was filed on or after October 1, 1989, (section 44). That is the case here. [ 101 ] As the Supreme Court of Canada noted in Teva Canada Ltd v Pfizer Canada Inc , 2012 SCC 60 [ Teva Canada ] , the patent system in Canada " “is based on a ‘bargain’, or quid pro quo : the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge” " ( Teva Canada at para 32 ; see also: Camco at para 13 ).

Disclosure is " “is the quid pro quo for valuable proprietary rights to exclusivity” " ( Teva Canada at para 32 ).

[102] Under the Act, disclosure of the invention is provided by the "“specification”", the content of which is governed by subsections 27(3) and (4) of theAct. This "“specification”", as we have seen, has two parts: the disclosure and the claims.

The specification must, among other things, "“set out clearly thevarious steps in a process, or the method of constructing, making, compounding or using a machine, manufacture or composition of matter, in such full,clear, concise and exact terms as to enable any person skilled in the art or science to which it pertains, or with which it is most closely connected, to make,construct, compound or use it""”" (paragraph 27(3)(b)). [103] For their part, the claims, which follow the disclosure in the specification, define "“distinctly and in explicit terms the subject-matter of theinvention for which an exclusive privilege or property is claimed”" (subsection 27(4)).

They serve, in this sense, notice to the public of what it can andcannot do without risk of violating the monopoly protected by the patent (Camco para 42). [104] Essentially, the specification is "“a unilateral statement by the patentee, in words of his own choosing, addressed to those likely to have a practicalinterest in the subject matter of his invention (i.e.

""‘""skilled in the art""’""), by which he informs them what he claims to be the essential features of thenew product or process for which the letters patent grant him a monopoly”" (Camco para 44, citing Catnic Components Ltd v Hill & Smith Ltd, [1982]CPR 183 (UK HL) at pp 242-243). [105] However, it is the claims in the specification that define and clarify the scope of the monopoly (Camco at paras 18, 48).

In Free World Trust vÉlectro Santé, 2000 SCC 66 [Électro-Santé], the Supreme Court noted that claims have often been compared to "“‘fences’ and ‘boundaries’, giving the‘fields’ of the monopoly a comfortable pretense of bright line demarcation”", the objective being always to inform the public in a clear and precise waynot only where it must not trespass, so to speak, but also where it may safely go (Électro Santé para 14).

Thus, what is not claimed, even if it is mentionedin the disclosure, is excluded from the monopoly conferred by the patent (Camco at para 42; Monsanto Canada Inc v Schmeiser, 2004 SCC 34 atparas 123-124), per Arbor J, dissenting in part [Monsanto]). [106] In Zero Spill Systems (Int’

l) Inc v Heide, 2015 FCA 115, leave to appeal to the SCC refused, 36542 (January 14, 2016) [Zero Spill], the FederalCourt of Appeal recently summarized the principles applicable to the construction of claims in the following manner: [41] Before us, the parties broadly agreed on the operative principles for claims construction.

The well-accepted canons of construction are asfollows: • Claims construction is the first step in a patent suit. • The task of claims construction rests with the court. • The court must read the claims through the eyes of the person skilled in the art to which the patent pertains. • The skilled reader comes to the patent armed with all of the common general knowledge in the art. • The skilled reader construes the claims as at the patent’s publication date. • The essential elements of the claims must be sorted from the non-essential elements. • The claims are to be read purposively with the object of obtaining a fair result as between the patentee and the public. • The words of the claims are to be considered with reference to the entire specification, but not with a view to enlarging or contracting theclaims’ language as written. • Expert evidence is admissible to assist in placing the court in the position of the skilled reader. [107] I would add this: a.

The claims’ construction cannot vary according to whether it is the patent’s infringement or its validity that is being considered, the sameinterpretation being used to examine both issues (Camco at para 49(b); Bombardier Recreational Products Inc v Arctic Cat, Inc, 2018 FCA 172 atpara 29 [Bombardier FCA]); b. Claims must not be construed according to the infringing object or mechanism—here the QHR—in respect to patent infringement, or according toprior art when determining a patent’s validity (Camco at para 49(a); Dableh v Ontario Hydro, (FCA), [1996] 3 FC 751 (FCA) atpara 26 [Dableh]); and c.

For the purposes of its

interpretation, a patent "“must be read by a mind willing to understand”", that is, a mind that "“necessarily pays closeattention to the purpose and intent of the author”" (Camco at para 49(c)). [108] In this case, the parties agree on the date of publication of the patents at issue, and therefore on the date from which the "“skilled reader”" interpretsthe claims. In the case of Patent 794, it is August 24, 1999; and in that of Patent 598, June 13, 2002.

There is also consensus among the parties as to theessential character of all the elements of the claims in dispute, such that, in their view, there is no need to sort the essential elements of said claims fromthe non-essential ones in the circumstances. [109] In light of this analysis, and as I have stated in setting out the issues to be decided, I must first (since in a way, I must put myself in their shoes)identify the POSITA and the state of the general knowledge of that person on the dates of publication of the two patents at issue.

I must do so because thepatent is addressed to this person, not to an ordinary member of the public (Électro Santé para 44) or to a grammarian or an etymologist (Camco para 53).

(2) POSITA [110] A POSITA is a worker of ordinary skill in the field to which the patent relates; he or she is deemed to be uninventive. On the other hand, a POSITAis sufficiently versed in this art to be able, on a technical level, to understand the nature and the description of the invention.

In this regard, a POSITA isheld to be reasonably diligent in keeping up with advances made in the field of the patent since it is assumed that general knowledge in this field canevolve and grow constantly (Camco para 53-74). [111] Each expert in this case has proposed their definition of the POSITA, and this definition applies, in each case, to both patents in issue despite thethree years between their respective publication dates. [112] Mr.

Thilloy, for the plaintiff, submits that for the purposes of the two patents in question, the POSITA is a person who necessarily has an academicbackground in computer science, at the master’s level, and preferably in mathematical computer science or computer engineering. This person also has anumber of years of hands-on experience in the 1990s and early 2000s in software development, web services, software architecture in the field ofinformation technologies, solution architecture in this same field, and/or so-called "“service-oriented” "architecture. This experience, however, does not

have to be related to the medical field. [ 113 ] For Mr. April, the POSITA has a three-year college degree in data technologies or a bachelor’s degree in administrative data processing. The POSITA also has three to five years of experience in application software programming, particularly in the health field, where this person is called upon to carry out this task on commercially available equipment, configured in a generic client/server architecture and including distributed databases. [ 114 ] In response to the POSITA proposed by Mr. April, Mr.

Thilloy opines that a POSITA with administrative data processing training, an academic discipline primarily focused on data, might have a vision centred too much on " “data”, " while the nature of the patents in question goes beyond the mere frame of a data structure.

Broader and more comprehensive academic training, provided by mathematical computer science or computer engineering, seems preferable to him because such training aims at acquiring knowledge, relevant to the present dispute, of the internal components of computers, communication protocols and data exchange models between systems. [ 115 ] To the extent, moreover, that Mr. April’s POSITA would have had difficulty, according to Mr. April, understanding certain explanations contained in the description of the patents in question, this may be explained, according to Mr.

Thilloy, by the fact that this person has only a simple college training of three years in administrative data processing. Conversely, the general knowledge of this person, as described by Mr. April, appears much broader to him than what a person with such training would have possessed at the relevant time. [ 116 ] Finally, in terms of practical experience, Mr. Thilloy continues to claim that there is no need for programming experience in the field of health, stating that neither he nor Mr.

April had any experience in this field at the relevant dates and that this would not have prevented them from reading and understanding the patents in question. [ 117 ] It goes without saying, given the nature of the two patents in question, that the POSITA, as the experts suggest, must have an academic background in computer science and must have between three and five years of practical experience in this field in the 1990s and early 2000s.

Given the complexity of the field covered by these patents and the rapid evolution of knowledge and technological innovations in this field at the relevant time, a university degree in computer science, not necessarily at the master’s level, seems in my view preferable to college-level training, even if it is three years. It also seems to me preferable, as Mr.

Thilloy proposes, that this training allow the acquisition of knowledge not only of data structures, but also of the internal components of computers, communication protocols and data exchange models between systems. [ 118 ] Moreover, much of the current general knowledge that Mr.

April’s POSITA has on the relevant dates relates to such topics since, in his opinion, this person would have been familiar not only with the notions of databases and data structures, but also, in particular, application software, client-servers, client items, source systems, database records, unique identifiers, pointers, and so-called " “proprietary” " or " “open” " data exchange protocols. These are concepts mentioned in the literature cited by Mr.

April in his report dated March 9, 2018, to illustrate what would have been, at the relevant time, the set of common general knowledge of his POSITA (April Report, March 9, 2018, at paras 53-73). [ 119 ] With regard to the practical experience of the POSITA, it seems to me desirable, as Mr. April suggests, that a portion of this experience be in the field of health, given the very clear relationship, upon reading the specification of each patent in question, between this field and the problems that the two inventions described therein sought to solve.

This experience also seems to me to be desirable because, as Mr.

Thilloy points out, the publication of the patents at issue took place at a [ translation ] " “pivotal time in information technology” " (Thilloy Report, March 9, 2018, at para 37), at a time when, as he acknowledges, the idea of implementing electronic health records [EHR] had been around for some time and had already taken shape (Thilloy Report, March 9, 2018, at paras 41-47). [ 120 ] Having outlined the profile of the POSITA, I must now identify, before construing the claims at issue, what would have been, on the relevant dates, the common general knowledge of this " “worker of ordinary skill in the field to which the patent relates” who is deemed to be “uninventive” " but is willing to understand and not seek out difficulties.

(3) POSITA’s general knowledge [ 121 ] Common general knowledge is what the POSITA would have generally known at the relevant time ( Apotex Inc v Sanofi-Synthelabo Canada , 2008 SCC 61 at para 37 [ Sanofi ] ).

To be characterized as such, it is not enough that there was mention of this body of knowledge in articles or journals of a scientific nature, even those with a large circulation; this knowledge must be " “generally known and accepted without question by the bulk of those who are engaged in the particular art” " ( Eli Lilly and Company v Apotex Inc , 2009 FC 991 at para 97 , citing General Tire & Rubber Co Firestone Tire & Rubber Co Ltd, [1972] RPC 457, [1971] FSR 417, (UKCA); aff’d on appeal, 2010 FCA 240 ) . [ 122 ] Here, the experts, while disagreeing on the exact scope of some of them, generally agree that their respective POSITAs would have been familiar with all the key technical concepts found in the claims of the patents in question and around which these claims are constructed, namely, in particular, the concepts of: Computer readable storage medium; Data structure; Record ; Pointer; Address; Location; Nodes; Server; Network server; Processor; Memory; Program element; Data network; The act of pushing information; and Server arrangement. [ 123 ] There is also consensus that each expert’s POSITA would have been familiar with the concepts of application software, client-server architecture, relational databases, database records, keys allowing access to these records, and so-called " “open” " data exchange protocols, namely the commercial DICOM and HL7 protocols, which were, at the relevant date, already the preferred data exchange protocols in the health-care field, in Canada as elsewhere. [ 124 ] The POSITA that I have defined, and whose profile is inspired, both in terms of academic training and practical experience, by each expert’s POSITA, would have possessed this body of common general knowledge. [ 125 ] Given their experience in the health field, the POSITA would have been as familiar, as the defendants suggest, with the electronic health records

systems in place at the time and the specific medical data source systems, such as the medical imaging test results, then present in some health-care facilities.

(4) Inventions at issue, according to experts [ 126 ] Each expert stated what he understood to be the inventions related to the patents at issue.

a) Patent 794 [ 127 ] For Mr. Thilloy, Patent 794 presents a distributed and potentially longitudinal EHR through a network, focused on effective access to a patient’s medical information. This solution comprises a data structure facilitating the distribution of medical information between several information systems and a system for implementing this structure and making the distribution of medical information possible without centralizing the information. [ 128 ] Specifically, this distributed EHR solution, again according to Mr. Thilloy, [ translation ] " “defines a technological architecture that includes a

summary of certain relevant medical information and pointers or links to additional medical information that make it possible to determine the nature of this additional medical information” " , which additional information is stored on systems or servers that may be remote or separate from the

summary. This separation, Mr. Thilloy says, can be logical, in the sense that the additional information can be conceptually separated from the

summary while being stored on the same server, or physical (Thilloy Report, March 9, 2018, at paras 50-52). [ 129 ] Mr.

April, for his part, submits that the POSITA, upon reading Patent 794, would have understood that the system described therein consists of: [ translation ] . . . application software in the field of health specifically designed for doctors located in outpatient departments, which allows them to download, on request, medical information concerning a patient contained in the various source systems of delocalized institutions that the patient has visited, in a transparent manner (i.e. that hides the complexity of the source of this data), and which works on a generic client/server architecture using distributed databases. (April Report, March 9, 2018, at para 110) [ 130 ] Mr.

April goes on to write that this person would also have understood that this application software [ translation ] " “which should operate on the client station at each remote establishment would use a proprietary data format to exchange data that include a specific structure proposed by the inventor” " (April Report, March 9, 2018, at para 111).

b) Patent 598 [ 131 ] In Mr. Thilloy’s view, the invention described and claimed in Patent 598 relates to updating— most likely automatically—summary information of the distributed EHR contemplated in Patent 794, as new information becomes available on the network. Patent 598 also introduces the concept of " “personal communication system” " and " “smart card” " , [ translation ] " “which allow EHR data to be distributed up to the user level”. " The aim of the invention is thus to enable the providers (medical staff) and the users (patients) in the network to [ translation ] " “automatically and immediately” " access the most recent user data from their

summary information and from pointers pointing to new data available on the network (Thilloy Report, March 9, 2018, at paras 242, 244-245). [ 132 ] As for Mr. April, the main difference between Patent 794 and Patent 598, in terms of their respective Disclosures, is related to the fact that Patent 598 concerns [translation] " “the use of cellular and other similar devices, used as a client station, to save the patient’s

summary medical file” " (April Report, March 9, 2018, at para 193). In terms of claims, he notes that those of Patent 598 describe, at first glance, [translation] " “a method, automatic or not, of updating medical records, and a configuration of servers to make this update” " , with references to cell phones being limited to claims 9, 25 and 32 only (

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