2018 FC, 2018 FC 1302

Date: 20181221 Docket: T-1556-12 Citation: 2018 FC 1302 Ottawa, Ontario, December 21, 2018 PRESENT: The Honourable Madam Justice Elliott BETWEEN: HUMAN CARE CANADA INC. Plaintiff/Defendant by Counterclaim and EVOLUTION TECHNOLOGIES INC. Defendant/Plaintiff by Counterclaim PUBLIC JUDGMENT AND REASONS TABLE OF CONTENTS I. Overview 4 A. Nature of the Action 4 B. The Parties and Their Products 5

(1) Human Care 5

(2) Evolution 6 C. The Mobility Aiding Device Market in Canada 7 D. The 392 Patent 9 II. Facts Agreed Upon 11 III. Preliminary Issues 14 A. Commercial Embodiment and Commercial Success 15

(1) Mr. Macmillan’s Examination-in-Chief 15

(2) Dr. Brienza’s Expert Report 16

(3) Rulings on the Objections 17 B. Evolution’s Inventory Cost (“COGS”) Increases 18 C. Nonsuit 21 D. Lane Patent 25 IV. Witnesses 28 A. Human Care’s Fact Witnesses 29

(1) Douglas Macmillan 29

(2) Jeffrey Fishbein 31

(3) Rick Synkowicz 33 B. Evolution’s Fact Witnesses 34

(1) José-Luis Pita 34

(2) Stephen Liu 36 C. Human Care’s Expert Witnesses 37

(1) Dr. David Brienza 37 (

a) Evolution’s Critique of Dr. Brienza 39

(

b) Evolution’s Challenge to Dr. Brienza’s Credentials 40

(2) Nancy Rogers 42 (

a) Evolution’s Critique of Ms. Rogers 43 D. Evolution’s Expert Witnesses 43

(1) Jonathon Schuch 43 (

a) Human Care’s Critique of Mr. Schuch 44

(2) Mark A. Gain 45 (

a) Human Care’s Critique of Mr. Gain 46 V. Issues 46 VI. The Claims in Issue 47 VII. Claims Construction 49 A. The Law 49 B. The Approach to Claims Construction by Dr. Brienza and Mr. Schuch 54 C. The Person of Ordinary Skill in the Art [POSITA] 56 D. Common General Knowledge [CGK] 59 E. The Essential Elements of the Claims in the 392 Patent 62

(1) Essential Elements Agreed Upon 64

(2) Essential Elements Disagreed Upon 64

(3) The Approach to a Purposive Construction of the Essential Terms in Dispute 64

(4) Tension Rod Means 66

(5) Tension Rod Structurally Interconnects 71

(6) First and Second Supports 77

(7) Handle 81

(8) First and Second Cross Braces 88 VIII. Infringement 93 A. The Law 93 B. General Comments on the Infringement Issues between the Parties 94

(1) The Preferred Embodiment 95 C. The Xpresso Rollator Infringes the 392 Patent 97

(1) Tension Rod Means and Tension Rod Means Structurally Interconnects 99

(2) First and Second Supports 99

(3) Handle 100

(4) The First and Second Braces 101 IX. Validity 102 A. Rulings on the Objections Relevant to the Validity 103 B. Anticipation 106

(1) The Law 106

(2) The 392 Patent was not anticipated 109

C. Obviousness 109

(1) The Law 109

(2) The Inventive Concept 114

(3) Essence of the Invention 115

(4) The 392 Patent was not obvious 116 (

a) Commercial Success 117 D. Overbreadth 118

(1) The Law 118

(2) The Arguments of the Parties 121 E. Mere Aggregation 122

(1) The Law 122

(2) The 392 Patent is not a mere aggregation 123 X. Remedies 124 A. Damages – Reasonable Remedy 124 B. Is Human Care Entitled to Evolution’s Profits in Respect of Its Xpresso Products? 125 C. Agreed Upon Facts Relevant to an Accounting of Profits 126 D. General Legal Principles of an Accounting of Profits 127 E. Evolution’s Differential Profits Approach 128 F. Analysis of Evolution’s Differential Profits Approach 130 G. The Appropriate Accounting Method to Determining Evolution’s Profits 132 H. What Costs, if any, are Deductible from Evolution’s Xpresso Revenues, and in What Proportion? 133

(1) Deductible Expenses Claimed by Evolution 135 (

a) Sales and Administrative Costs – EVO-56 135 (

b) Accounting and Legal Fees 136 (

c) Consulting Fees 137 (

d) Other Discretionary Deductions Claimed 138 I. Conclusions on Accounting of Profits 138 J. Is Human Care Entitled to a Permanent Injunction? 139 K. Should Profits-on-Profits be granted 139 XI. Costs 139 XII. Pre- and Post-Judgment Interest 140 I. Overview A. Nature of the Action [ 1 ] The Plaintiff, Human Care Canada Inc. [Human Care] and the Defendant, Evolution Technologies Inc. [Evolution] each manufacture products called rollators in the industry of mobility aiding devices.

While members of the public commonly call rollators " “walkers” " , they are in fact a separate product— a rollator is a " “walker” " with wheels. [ 2 ] Human Care claims that Evolution has infringed Claims 16 and 18 of Canadian Patent No. 2,492,392 [the 392 Patent] of which it is and has been a patentee or, a person claiming under a patentee, throughout the relevant period. Human Care alleges that Evolution’s Xpresso rollator [Xpresso] features all the essential elements of those two claims.

[ 3 ] Human Care seeks: A . a declaration that Evolution's Xpresso products have infringed claims 16 and 18 of Human Care's 392 Patent; B . dismissal of Evolution's counterclaim in its entirety on the basis that the 392 Patent is valid; and C . remedies be granted, including: i . a permanent injunction issued restraining Evolution from infringing the 392 Patent; ii . reasonable compensation be awarded for infringement during the period when the application became open to the public and when the patent was issued, including Evolution’s profits made as a result of selling the infringing products; iii . a direction that Evolution immediately deliver to Human Care all articles in its possession, power or control that fall within the ambit of the 392 Patent; and iv . pre-judgment and post-judgment interest and costs of this action as determined by this Court. [ 4 ] Evolution defends the infringement action on the basis that the Xpresso lacks five essential elements found in Claims 16 and 18 of the 392 Patent. [ 5 ] Evolution also counterclaims that the 392 Patent is invalid because it was anticipated by another patent, was obvious given the prior art, is not inventive but was a mere aggregation of known parts and, the claims in the 392 Patent are broader than the invention actually made or described.

In support of the counterclaim, a list of 54 pieces of prior art is attached as a

schedule to the Second Amended Statement of Defence and Counterclaim. [ 6 ] In the Second Amended Reply and Defence to Counterclaim, Human Care denies Evolution’s allegations and asserts that the commercial success of the invention demonstrates that the 392 Patent is inventive and not obvious. [ 7 ] For the reasons that follow, I have concluded that the 392 Patent is valid and that it has been infringed. B. The Parties and Their Products

(1) Human Care [ 8 ] Human Care is an Ontario corporation located in Nepean, Ontario. It is a subsidiary of a global manufacturer and supplier of home healthcare products, including walkers and other mobility aiding devices. [ 9 ] In 2007, Human Care of Sweden acquired the Canadian company Dana Douglas Inc. As a result, the Plaintiff, Human Care, is the Canadian subsidiary of a Swedish mobility products company that also has offices in Austin, Texas, the Netherlands, and Melbourne, Australia.

Globally Human Care has about 100 employees. [ 10 ] Douglas Macmillan and his father, Dana Macmillan, started Dana Douglas. It first began selling rollators in Canada in 1990 by importing them from Holland. Later, it struck a deal whereby it would sell in North America the products of a manufacturing facility in Taiwan, which would sell them everywhere else. When the manufacturer opened a distribution centre in the United States, Dana Douglas decided it needed to control its own destiny and develop its own products.

The first such product was called the Infiniti. [ 11 ] Of interest in this matter is a rollator which Human Care markets under the brand name " “Nexus.” " Mr. Macmillan indicated that when it was launched in late 2004 the Nexus was the only cross-folding (side to side) rollator in the world with a centre-folding solid seat. All other rollators folded front to back or, if they cross-folded, they had a sling-type seat.

(2) Evolution [ 12 ] Evolution is a privately owned corporation that was incorporated in British Columbia. It has a global business which supplies mobility aiding devices for consumers. [ 13 ] The sole shareholder, President and CEO of Evolution is Julian Liu. He is the person in charge of all aspects of the business of the company. Mr. Liu oversees Evolution’s profitability and quality control; he negotiates contracts such as those with the factory and with the exporting company. Mr.

Liu’s wife, Alice Chen, and son, Stephen Liu, are also involved with the operations of Evolution. [ 14 ] The Evolution rollator, which allegedly infringes the 392 Patent, is marketed under the brand name " “Xpresso.” " It is agreed that all Xpresso rollators have a centre-folding frame. The term " “centre-folding” " is agreed to refer to a walker and/or rollator that folds laterally (or side folds), the folding of which is initiated by the user pulling on a handle. [ 15 ] It is also agreed that Evolution does not have a license in respect of the 392 Patent. [ 16 ] In addition to Evolution, Mr.

Liu owns a company located in China that sells point-of-sale software units to beauty salons in China. That product is also called Xpresso. C. The Mobility Aiding Device Market in Canada [ 17 ] Mobility aiding devices are typically used by persons for assistance with their daily activities by providing support during activity

or movement. These devices include canes, crutches, walkers, wheelchairs and rollators. [ 18 ] Historically, mobility aiding devices have been used for centuries. Wheeled chairs to carry people are said to have been in use as early as the 6th Century. The first patent for a wheelchair with a full reclining back was issued in 1869. More recently, in the 1930s, a folding wheelchair with a sling seat was invented and is still in use today. Wheelchairs have continued to evolve over time.

As is well known, today there are various specialized wheelchairs including electric wheelchairs, wheelchairs designed for specific sports, and wheelchairs that can be manoeuvered by quadriplegics. [ 19 ] Walkers originally consisted of a non-folding frame with handgrips and four or more legs. These walkers required the user to lift and position the walker between taking steps. In the 1970s, light weight folding walkers with wheels entered the market.

The user could push or roll the walker without lifting it to take steps. [ 20 ] The first rollator was a four-wheeled rolling walker invented in 1978 by a Swedish woman for her personal use. In contrast to a walker, a rollator usually includes brakes, handles, and a seat as well as a frame and wheels. [ 21 ] It is expected that rollators will be used outside. As such, they need to be stable in use and flexible enough to be put in the trunk of a car for transporting.

Users often sit on their rollators so they also need to be able to support the user’s weight without collapsing. [ 22 ] In Canada mobility aiding devices are sold to the public directly via websites and through home medical equipment dealers. There are hundreds of independent dealers in addition to large corporate dealers such as Motion Specialties, Shoppers Home Healthcare, and Home Medical Equipment. The dealers carry products from a variety of manufacturers or distributors whose sales persons actively seek out their business. Physical therapists may also make specific product recommendations to clients. D.

The 392 Patent [ 23 ] The 392 Patent was filed on January 14, 2005 claiming priority as of March 26, 2004 by United States Patent 10/809,334. The 392 Patent will expire on January 14, 2025. It was opened to the public on September 26, 2005 and was issued on November 30, 2010. [ 24 ] The named inventors of the 392 Patent are Mr. Ross Lyell Cowie and Mr. Bjarki Hallgrimsson.

The owner of the 392 Patent is the Plaintiff, Human Care. [ 25 ] The 392 Patent is entitled " “Mobility Aiding Device.” " The " “Technical Field” " of the invention sets out that " “[t]he present invention relates to a mobility aiding device, and in particular to a wheelchair, a walker, a transport chair, a shower seat or a rollator with a solid seat, which is hinged in the middle to enable the device to be easily folded into a storage position.” " [ 26 ] The " “Background of the Invention” " [Background] indicates that a large, aging, urban population has created an increased demand for various mobility aiding devices.

It states that existing mobility aiding devices such as walkers and rollators have become more popular than wheelchairs, crutches or canes because of their added structural support and versatility. A highly sought after feature is the ability to fold up into a storage position for travel or simply to save space when not in use. While conventional wheelchairs have had the ability to fold two sides of the frame into a storage position, they have always had a flexible or hammock seat.

It is said that a hard platform is now desired to provide comfortable seating and usable supporting structure for other items. [ 27 ] The Background then identifies various faults found in the prior art: - complicated one-piece seats require a great deal of manual dexterity and strength to open and close a device; - two-piece seats require extra support panels which are accessed from below the seat; and - two-piece seats employ extra-wide abutting surfaces between the pivoting seat panels and those abutting seats (

a) can pinch body parts and (

b) are not always strong enough for long-term use. [ 28 ] The Background

section concludes by identifying the problem to be solved by the 392 Patent as " “to overcome the shortcomings of the prior art by providing a mobility aid . . . with a solid seating platform made up o[f] two pivotally connected sections, with structural reinforcements that fold up easily into a storage position.” " [ 29 ] The " “Summary of the Invention” " describes in general terms two variations of the mobility aiding device adjustable between a use and a storage position. [ 30 ] There are nine drawings in the 392 Patent depicting preferred embodiments.

The drawings show the preferred embodiments from differing viewpoints. There are four different views of the rollator: isometric views of it in a use position and in a storage position; a front view and a side view. There are five different views of the chassis: an isometric view, a front view, an end view looking up from below the seating platform, an end view in a partially collapsed position, and an end view in the storage position. [ 31 ] The " “Detailed Description” " of the drawings found at paragraphs 30 to 39, refers to the nine figures which depict various elements of the embodiment shown.

The paragraphs mirror the claim language and provide additional information such as that the chassis " “is preferably made up of a lightweight high-strength material, such as aluminum” " and " “if the present invention were to be used with a walker or shower seat, the front and rear wheels could be replaced by end caps made o[f] rubber or some other non-slip material.” " [ 32 ] There are eighteen claims in the 392 Patent. Claims 16 and 18, which Human Care says have been infringed by Evolution, are independent claims as are Claims 10, 12, 14, 15 and 17.

Evolution has challenged the validity of all eighteen claims. II. Facts Agreed Upon

[ 33 ] The first exhibit entered at trial was an Agreed Statement of Facts [ASF] tendered on the basis that the contents of the agreement did not constitute an admission by either party of the relevance of the facts agreed upon or the weight, if any, to be given to them at trial. [ 34 ] In the ASF, certain non-contentious terms were agreed upon.

For example, there is an agreement as to the meaning of a centre-folding rollator: “Centre-folding” refers to a walker and/or rollator that folds laterally (or side folds), the folding of which is initiated by the user pulling on a handle; [ 35 ] The relevant dates for the 392 Patent and extracts from parts of the 392 Patent were also set out and agreed upon as were the names of the inventors and that Human Care is the current owner of the 392 Patent. [ 36 ] The ASF contains a short

summary of the development of the 392 Patent. It refers to an email from Mr. Macmillan to one of the inventors, Mr. Hallgrimsson, which included reference to two United States Patents known in these proceedings as " “Fernie” " and " “Loodberg” " and which was forwarded by him to the other inventor Mr. Cowie. [ 37 ] The total annual external sales revenues, total annual Nexus rollator sales revenue and the revenue that Human Care earned on its Nexus rollators as a percentage of its external sales revenue during the period 2006 to 2015 are agreed to and set out in a table format in the ASF.

This agreement obviated the need for either of the parties to prove any documents underlying the numbers in the table including the financial documents relied on by either of their accounting experts. [ 38 ] There is an acknowledgement that Evolution first sold the Xpresso rollators in July, 2008 and that they have a centre-folding frame. There is also confirmation that Evolution has offered for sale, sold, imported into Canada and exported from Canada a number of named Xpresso rollators in various sizes and that the Xpresso Zero has been assembled in Canada since July 2008.

Xpresso Parts & Accessories are defined in the ASF and are said to have been offered for sale, sold, imported into Canada, exported from Canada and assembled in Canada by Evolution from July 2008 to present. [ 39 ] It is agreed that Evolution does not have a license in respect of the 392 Patent. [ 40 ] There is an agreement that there is no prior anticipatory disclosure of the invention under paragraph 28.2(1) (

a) of the Patent Act , RSC 1985, c P-4 [ Patent Act ]. [ 41 ] If the 392 Patent is found to be valid and infringed under ss. 55(2) of the Patent Act , an amount is agreed upon for a reasonable royalty to be paid for Evolution’s use of Human Care’s patented technology from the date of launch of the Xpresso in July 2008 until the 392 Patent was issued on November 30, 2010. The royalty rates for, and the total number of Xpresso rollators sold, between July 1, 2008 and November 30, 2010 is agreed upon.

The royalty rate is based on the actual royalty rates paid in respect of the Nexus rollators from 2006 to 2011 calculated from July 1, 2008 up to July 1, 2010 and from July 1, 2010 to November 30, 2010. [ 42 ] To assist with the calculation of an accounting for profits, a table sets out the Xpresso rollator unit sales from December 1, 2010 to June 30, 2016. There is a stipulation as to the total sales revenue from Xpresso Products, as defined earlier in the ASF, for the same time period.

There is also agreement between the parties as to the Xpresso Product Freight Costs for that same time period. [ 43 ] Facts that have been agreed upon, in addition to the foregoing, are interspersed throughout this Judgment and Reasons. III. Preliminary Issues [ 44 ] During the course of the trial, there were a number of objections.

Some objections were ruled on immediately; others were reserved and will be addressed as necessary during the course of this Judgment and Reasons when the subject matter of the objection is being reviewed. [ 45 ] There was also a motion for nonsuit at the close of the Plaintiff’s case. The nonsuit motion is dismissed for the reasons set out below. [ 46 ] Human Care raised an objection about Evolution’s reliance on an American patent as its inspiration for the Xpresso.

That objection is sustained and the reasons are provided in this decision. [ 47 ] Human Care also objected to Evolution’s increased inventory costs. This objection is analyzed in this decision and is sustained. [ 48 ] After receipt of the written closing submissions, correspondence was received from each party concerning Evolution’s submissions with respect to invalidity based on anticipation.

That objection is dealt with as part of the discussion of whether the claims in the 392 Patent were anticipated. [ 49 ] Two matters which were briefly taken under reserve and determined on day two of the trial are outlined and determined below. A. Commercial Embodiment and Commercial Success [ 50 ] During the examination-in-chief of Mr.

Macmillan on the first day of trial, counsel for Evolution objected under Rule 248 of the Federal Courts Rules , SOR/98-106 [ Rules ] to Human Care presenting any facts or information or making any submissions with respect to the Nexus rollator being the commercial embodiment of the 392 Patent. The same objection was then made with respect to any sales of the Nexus rollator or evidence that it was a commercial success. The basis for the objections was that Human Care had refused to answer a number of questions on discovery related to both commercial embodiment and commercial success.

[ 51 ] In addition, Evolution objected to any submissions being made regarding the Nexus and, in particular, any facts or evidence by any witness that the Nexus is a commercial embodiment of the 392 Patent. This objection encompassed Dr. David Brienza’s Expert Report and his statements as to the Nexus being the commercial embodiment of the claims in the 392 Patent and any fact evidence being put forward by any witness as to the commercial success of the Nexus. [ 52 ] At the opening of the second day of trial, I provided oral rulings denying the objections. A brief

summary of the objections and rulings follows.

(1) Mr. Macmillan’s Examination-in-Chief [ 53 ] The objection addressing whether evidence of the commercial success of the Nexus could be led was an issue closely connected to the commercial embodiment argument. It arose when counsel for Evolution objected to Mr. Macmillan mentioning the " “tremendous success of the cross-fold” " , in response to counsel for Evolution asking " “what cross-fold,” " Mr.

Macmillan, presumably being unaware of the commercial success argument, immediately answered " “the Nexus.” " We were then away to the races. [ 54 ] Counsel for Evolution was well prepared, reading a number of examples of questions posed during discovery of Mr. Macmillan regarding the Nexus and the answers by his counsel which tended to be either the question was not relevant or, it was a matter of expert opinion. [ 55 ] Human Care submitted in response to this objection that answers had been given and there was a pleading amendment claiming commercial success of the Nexus.

(2) Dr. Brienza’s Expert Report [ 56 ] Evolution objected under Rule 52.2 to Dr. Brienza’s Expert Report on the basis that there was no analysis, just conclusions based on his review of photos of the Nexus. As such Evolution sought to exclude the report under Rules 279 and 280 because it had not been prepared in accordance with the Court’s expert code of conduct.

Rule 52.2 requires that facts and assumptions be provided in the report to support the reasons for each opinion given. [ 57 ] Human Care replied that the expert report and will-say statements had been in the hands of Evolution since before the pretrial conference but had not been objected to by Evolution. In addition, Evolution had been on notice that Human Care took the position that the Nexus is the commercial embodiment of the 392 Patent since after the first round of discovery and the pleading amendment clearly state that commercial success was being claimed.

(3) Rulings on the Objections [ 58 ] After hearing the arguments, reviewing the documents provided or referred to and considering the case law, I found the objections were not well founded for a variety of factors which were outlined in my oral reasons. In addition, I held that the concerns as to the question of commercial success or otherwise of the Nexus and the contents of Dr.

Brienza’s reports were best challenged by cross-examination. [ 59 ] At trial I added and, reiterate here, that in any event I would have exercised my discretion to waive compliance with the Rules given the length of time that answers had been provided to questions posed in discovery and considering that each side failed to take active steps to address the matters raised in the objections at either the case management conference or the pretrial conference. [ 60 ] On the Rule 248 objection, I found that despite the submission that no answers were provided during discovery answers were in fact given. [ 61 ] I specifically addressed that Rule 248 only applies if a proper question has been asked and there has been a refusal to answer the question either at that time or subsequently.

The questions which were put to Mr. Macmillan in April of 2015 were objected to on the basis that he was not properly qualified to answer them as they were a matter of expert opinion. Therefore, they were not proper questions. Additionally, the commercial embodiment questions were subsequently answered on July 8, 2015 stating that the Nexus 1, 2 and 3 rollators were commercial embodiments of the 392 Patent.

The pleading amendment made by Human Care in the counterclaim referred to the Nexus rollator as being the embodiment of the invention in the 392 Patent. [ 62 ] On the Rule 52.5 objection, I found that the conclusion in the Expert Report could not be divorced from the balance of the report in which Dr. Brienza had reviewed Claims 1 to 15 and his infringement report was referred to in his Responding Report where he detailed the provisions of Claims 16 and 18 of the 392 Patent. [ 63 ] In addition, Dr. Brienza referred extensively to the drawings and he examined the claims in the 392 Patent.

It simply could not be said that the conclusions he drew were not supported by facts, assumptions and analysis. B. Evolution’s Inventory Cost ( " “COGS” " ) Increases [ 64 ] During the hearing, Human Care brought an objection with respect to Evolution’s inventory cost ( " “COGS” " ) increase. That is, Human Care objects to Evolution’s alleged reliance on increased COGS under Rule 248 of the Rules .

Human Care claims that because Evolution was not questioned about the increased cost at discovery such information should not form the basis of my determination. [ 65 ] In particular, Human Care asserts the following: After two rounds of examinations for discovery, Mr. Pita claimed that—based on EVO-49—the inventory costs for Xpresso Lite and Xpresso Original and Tall was |||||| and |||||||||| respectively.

On August 8, 2016, Evolution allegedly provided new invoices for Fine Faith that demonstrate that the cost of Xpresso rollators range from |||||||||| to |||||||||| . In light of the new unit price, Human Care demanded that Evolution answer four pages of written interrogatories before the trial. Evolution refused. Therefore, Human Care claims that it did not have sufficient discovery of the Xpresso’s unit price and was prejudiced in the process. [ 66 ] Evolution argues that Human Care is misinterpreting Mr. Pita’s statement and, is seeking another round of discoveries.

Specifically, Evolution’s position can be summarized as follows: Mr. Pita was not opining generally about the cost of Xpresso rollators; rather he was describing one particular invoice that Ms. Wall was asking about. Evolution provided all relevant documents (EVO-57 to EVO-63) three months before the second round of discovery. It is evident in these invoices that the unit cost of the Xpresso varies. Evolution did not answer the written questions before trial because (

i) the questions were a veiled attempt at another round of discovery; and (ii) the Rules only allow for both oral and written discovery if the parties consent (or with leave from the Court). Neither applied here. [ 67 ] I find that Evolution did not provide Human Care adequate opportunities to raise questions about COGS for three reasons. [ 68 ] First, Evolution’s argument that Human Care had access to the relevant invoices during the two rounds of discovery is inaccurate. Human Care was only provided with invoices for Fine Faith for 2008-12 (EVO-49) during the discoveries.

These invoices indicated that the unit cost of the rollators were |||||| and |||||||||| . It was only after the two rounds of discovery that Evolution provided more comprehensive invoices that showed a higher cost per unit. [ 69 ] Second, Evolution says that the materials given after the two examinations for discovery were means to verify the invoices that were disclosed earlier. In effect, they are not " “new” " .

However, EVO 57 to 63—the invoices disclosed before the two rounds of discovery—contain piecemeal information about Fine Faith and would not allow anyone to get a firm picture of the impugned unit price. [ 70 ] Third, Human Care made reasonable efforts to obtain information about the unit price, especially in relation to Fine Faith. Some examples include: When Mr. Pita was examined in 2015, he confirmed that the unit price was |||||| and |||||||||| respectively. In the exchange, it is easy to see that perhaps Human Care’s counsel, Ms. Wall, was speaking about the price at large and Mr.

Pita was just interpreting one invoice (which Evolution claims is the case). Nevertheless, Ms. Wall is assured that this price pertains to " “all” " rollators. Evolution undertook to advise otherwise if Mr. Pita was wrong. Human Care’s counsel is assured again that the price is |||||| and |||||||||| during discoveries in December 2015. [ 71 ] It is incorrect to say that Human Care failed to ask about the unit cost. It did so repeatedly in its questioning of Evolution’s witnesses.

Rather, Evolution has been unable and/or unwilling to provide such information. [ 72 ] In view of the above three findings, I conclude that Rule 248 prohibits Evolution from relying on information about increased COGS. This Court has recognized that Rule 248 " “aims to avoid a party being prejudiced by late disclosure of documents or information and to prohibit ‘trial by ambush’” " : Airbus Helicopters, SAS v Bell Helicopter Textron Canada Limitée , 2017 FC 170 at para 18 ; Apotex Inc v Sanofi Aventis , 2010 FC 481 at para 6 .

Evolution’s failure to provide timely and complete information has done precisely what the case law warns against— it has prejudiced Human Care’s ability to properly question Evolution’s witnesses. Therefore, I will not consider Evolution’s COGS increases in my assessment. C.

Nonsuit [ 73 ] At the close of Human Care’s case on infringement, Evolution moved for nonsuit on the grounds that Human Care had not met its burden to prove on a balance of probabilities that the Xpresso rollator fell within the scope of the claims of the 392 Patent. [ 74 ] The basis for the allegation was a comparison of the testimony of Dr. Brienza at trial and in his Expert Report through which Evolution concluded that under Dr. Brienza’s

interpretation of the 392 Patent the Xpresso rollator did not fall within Claim 16 or 18 because it lacked an essential element: a pivotally connected support to the frame member. [ 75 ] This in turn was based on Dr. Brienza describing the connection of the first and second supports to the first and second frame members in the 392 Patent as being described by a direct connection. This was contrasted with paragraph 40 of Dr. Brienza’s Expert Report where he said the cross braces were connected to the supports and the frame members either directly or indirectly via one or more components such as a hinge or bracket.

The conclusion drawn by Evolution was that there was an indirect connection between the supports and the frame members of the Xpresso and, therefore, the Xpresso did not fall within the 392 Patent which required a direct connection. [ 76 ] Human Care responded to the motion whereupon Evolution was put to its election of whether it wished to call evidence which it did. [ 77 ] I pause here to note that the Rules do not provide a process for a nonsuit motion.

In Canadian Union of Postal Workers c Canada Post Corporation , 2011 FC 25 Madam Justice Bédard in considering a nonsuit motion reviewed the fact that the Rules of this Court in 1978 addressed the effect of a judgment of nonsuit but the specific rule, Rule 339, was repealed when the 1998 Rules were adopted. Justice Bédard determined, for reasons set out at paragraph 13 of her decision, that the repeal of Rule 339 did not eliminate the pre-existing right to bring a motion for nonsuit.

[ 78 ] The Ontario Court of Appeal has noted that although neither the Courts of Justice Act , RSO 1990, c C 43 nor the Rules of Civil Procedure , RRO 1990, Reg 194 specifically provide for bringing nonsuit motions, the judges have continued to hear such motions: FL Receivables Trust 2002-A v Cobrand Foods Ltd , 2007 ONCA 425 at para 12 [ FL Receivables ]. [ 79 ] It may well be that nonsuit is available at common law but, it is not necessary to resolve that question as I have determined that if it is available, whether under the Rules or at common law, Evolution has failed to show that there is no case to answer as set out FL Receivables at paragraph 14 . [ 80 ] In FL Receivables , Mr.

Justice Laskin canvassed the procedure for a nonsuit motion at paragraphs 13, 14 and 35, and commented on the utility of such motion: [13] Still, I question whether in this province a non-suit motion in a civil non-jury trial has much value. In Ontario, when a defendant moves for a non-suit, the defendant must elect whether to call evidence. See Ontario v. Ontario Public Service Employees Union (OPSEU), [1990] O.J. No. 635, 37 O.A.C. 218 (Div. Ct.), at para. 40 . If the defendant elects to call evidence, the judge reserves on the motion until the end of the case.

If the defendant elects to call no evidence -- as Robert Laba elected in this case -- then the judge rules on the motion immediately after it has been made. [14] A non-suit motion adds to the time and expense of a trial. And because of the election requirement, it has little practical value. Perhaps a defendant bringing the motion sees a tactical advantage in being able to argue first. To succeed on the motion, however, the defendant must show that the plaintiff has put forward no case to answer, in most lawsuits an onerous task.

Why not simply take on the less onerous task of showing that the plaintiff's claim should fail? It is small wonder that most commentators consider that in civil judge alone trials, non-suit motions gain little and are becoming obsolete. See Phipson on Evidence, 16th ed. (London: Sweet & Maxwell, 2005) at 274, and John Sopinka, Donald B. Houston & Melanie Sopinka, The Trial of an Action, 2nd ed. (Toronto: Butterworths Canada, 1999) at 151-52. [ . . . ] [35] On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these.

First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign "the most favourable meaning" to evidence capable of giving rise to competing inferences. [ . . . ] [my emphasis] [ 81 ] Certainly, Human Care put forward more than just " “some” " evidence on all elements of its claims to show that Evolution had infringed the 392 Patent.

On that basis alone, the motion is dismissed. [ 82 ] I would add that the problem with Evolution’s analysis was that the testimony at trial of Dr. Brienza referred to a different element — the connection with the supports—than the reference in his Expert Report— cross braces. Dr.

Brienza clearly stated during cross-examination as to the type of connection between the Xpresso support and frame member that " “the Xpresso is directly connected, pivotally— directly pivotally connected to the frame member so it does fall within the construction.” " The nonsuit motion can be dismissed on this evidence which I am to assume is true. Attributing the most favourable meaning to that evidence, the Xpresso support is directly connected to the frame member and Evolution has not met its burden of proof. [ 83 ] In the result, the nonsuit motion is dismissed for these reasons. D.

Lane Patent [ 84 ] Human Care objected under Rule 248 to Evolution putting forward evidence through its fact witness Mr. Pita to the effect that the inspiration for the Xpresso rollator came from a 1957 United States Patent 2,810,429 [the Lane Patent]. Human Care says this story of inspiration behind the Xpresso rollator was raised for the first time at this trial despite a long history of litigation including previous discoveries of Mr. Pita regarding the development of the Xpresso rollator. [ 85 ] Human Care first became aware of the Lane Patent when it received Mr.

Jonathon Schuch’s Expert Statement dated September 2016 and it was cited as prior art. However, until the opening of trial, Human Care was not aware of the claim that either Mr. Pita or Mr. Liu took the position that the Lane Patent was the inspiration for the Xpresso as described by Mr. Pita in response to a question from counsel for Evolution: Q. And the folding structure of the Xpresso down here, these cross braces, these come from – A. Yeah. We tried different things. We tried even, like, the same as a wheelchair.

The wheelchairs would cross like that and tubing, and it wasn't strong enough until we came up -- we saw that this, the design of a wheelchair with a patent from 1957. I think it was called Lane, the fellow who design it, and he had a solid seat in the wheelchair, and it folded. It split in the middle, and it folded like...

Trial Transcript, Vol. 4, P. 729, L 8 – 17. [ 86 ] The basis for the objection, once that testimony was given, is that during discovery on May 20, 2015, Human Care asked Evolution to identify any patents that it was aware of during the development of the Xpresso rollator and to identify any facts relevant to the allegations that the 392 Patent was anticipated and obvious.

Evolution did not disclose the Lane Patent in response to those questions. [ 87 ] Evolution argues that it disclosed to Human Care on the first day of discovery that the Xpresso rollator was based on a famous wheelchair as illustrated by the following exchange:

Q. Also on page 2, there's a heading 'Features,' and under that it says cross style, centre folding mechanism for compact storage and transportation. What is meant by that reference to cross style or X style? A. [By Mr. Pita]…Wheelchairs have an X. For years, they call it, 'This is an X folding,' because they have a frame that is an X like that, so we just borrow that from the wheelchair lingo. Q. So it's just a reference to the frame under the walker that allows it to fold? A. Yes. And this is what is an X because the walker opens like this. When you close it, it goes like that.

But this is something that is used in every wheelchair. Every wheelchair manufacturer will talk about that. Q. And that goes back to your earlier reference where wheelchairs have used centre-folding technology for a while. A. Yes. Many years Trial Transcript, Vol. 5, P. 873, L. 17-28; P. 874, L. 1-16. [ 88 ] Evolution observes that Human Care posed no follow-up questions to determine whether there was a particular wheelchair design or document that it had considered; nor were there any questions asked that could be properly updated to provide the information.

In fact, Evolution says that the answer provided by Mr.

Pita was in response to a question about statements on Evolution’s website about the X design. [ 89 ] The question upon which Human Care relies to say that Evolution should have disclosed the Lane Patent was a broad, all-encompassing one to the effect of " “what other facts does Evolution have that the subject matter of the claims other than Claims 16 and 18 were disclosed to the public before either January 13, 2013 or before March 26, 2004.” " In other words, the Lane Patent is relevant to obviousness and anticipation, and therefore, it ought to have been answered. [ 90 ] Human Care points out that reference to the Lane Patent did not form part of Evolution’s Affidavit of Documents as of February 6, 2014 or any of the three subsequent affidavits of documents up to August 12, 2016.

It was first listed in the Supplemental Affidavit of Documents dated October 31, 2016. The August 30, 2017 Affidavit of Documents first produced certified copies of all prior art relied on by Evolution, including the Lane Patent. [ 91 ] Human Care summarizes the issue that despite being examined on discovery on multiple occasions, across two separate actions on the Xpresso rollator, Mr. Pita only stated for the first time at this trial that the Lane Patent was the inspiration for the Xpresso rollator and had been widely known to himself and Mr.

Liu since at least 2005. [ 92 ] Counsel for Evolution indicated it did not have the Lane Patent until receiving the Schuch Expert Report and it was only then that he realized it was relevant to the issues of anticipation and obviousness. [ 93 ] In considering this objection, made after hearing all the testimony, I find it unnecessary to come to a conclusion on the Lane Patent objection. This is because, having heard the evidence of Mr. Pita, considering the history of the parties including read-ins from several discoveries and the chronology of the affidavit of documents, I find that Mr.

Pita’s evidence at this trial has been vague and inconsistent with his discovery testimony on several points. To be fair, it may well be because he was relaying second-hand information provided to him by Mr. Liu. [ 94 ] The inspiration story of the Lane Patent is simply not credible. It suffers from issues of hearsay with respect to the involvement of Mr. Liu. I did not find Mr. Pita’s evidence credible regarding his recollection of the Lane Patent or his involvement with it at an inspirational level. His evidence was clear that Mr.

Liu, who did not testify in this matter, claims to have found inspiration for the Xpresso rollator in the Lane Patent. IV. Witnesses [ 95 ] The parties called a total of nine witnesses: five by Human Care and four by Evolution. [ 96 ] In addition, read-ins from the examination for discovery of the inventors Mr. Hallgrimsson and Mr. Cowie were tendered. As part of the read-ins, a series of documents were included for context.

There was no agreement as to the truth of the contents of the statements made in those documents. [ 97 ] There were also read-ins from the examination for discovery of Evolution’s witness, Mr. Pita, both in this matter and in a previous action between the same parties. [ 98 ] Mr. Liu was cross-examined by teleconference on December 3, 2014. Part of a condensed transcript of that cross-examination was made an exhibit to the examination for discovery of Mr. Pita, held May 20, 2015, which was entered as an exhibit at trial. A. Human Care’s Fact Witnesses

(1) Douglas Macmillan [ 99 ] Mr. Macmillan was the first witness called at trial. For approximately 28 years he was the Vice President or President of first Dana Douglas and then Human Care. As of July 2015, Mr. Macmillan was no longer employed by Human Care. [ 100 ] Mr. Macmillan started in the mobility aiding device business in 1988 or 1989 primarily selling wheelchairs. He gave a brief

overview of the history of the products sold by Dana Douglas and Human Care. [ 101 ] Mr. Macmillan first identified a new product opportunity in 2001 or 2002, when he was in Montréal visiting his wife’s grandmother at her retirement home. He noticed the residents had to leave their rollators at the entranceway to the dining room and they were then separately taken by wheelchair to their tables to sit. He made inquiries and was told this was because the fire marshal required a specific distance between the dining tables and walls. Those residents who used a folding wheelchair could have it at their tables.

The rollators took up too much space as they had to lie on the floor and were deemed a fire hazard. From that observation, Mr. Macmillan believed there was an opportunity to develop a product for long-term care facilities and nursing homes. [ 102 ] After thinking about it, Mr. Macmillan had in mind certain features for a new product. He felt it had to fold side to side and have a solid seat that would fold with the frame. He had observed issues with the sling seat used in wheelchairs at that time.

He also had observed that his two young children preferred the swings in the park that had a solid seat because the ones with a strap sank in and pinched their hips. [ 103 ] Mr. Macmillan testified that he had no postsecondary education and was not completely sure he had graduated from high school. In terms of developing a product, Mr. Macmillan knew he was not capable of doing so in part because he was dyslexic. Therefore, he turned to the husband of a friend of his wife, Mr. Hallgrimsson, who was a product designer. [ 104 ] Mr.

Macmillan’s contribution to product development of the invention in the 392 Patent was to go online to see what patents existed and whether there was anything of interest. Because his reading and comprehension was poor, he did not read the patents but he did look at the pictures. [ 105 ] Regarding side folding rollators, Mr. Macmillan was aware of the Tango, which had a sling seat. Human Care, at the time was a separate company located in Sweden, had a side folding rollator with a solid seat but the seat itself did not fold. Rather it had to come out and around to collapse the rollator. According to Mr.

Macmillan, the seat was " “very, very weird.” " [ 106 ] Mr. Macmillan also gave evidence with respect to the new product development process of Human Care, the cost of it and the ability to save costs by leveraging prior development work and parts made for the first in-house product, the Infiniti. [ 107 ] On cross-examination, Mr. Macmillan acknowledged that he did not part with the company on good terms; however, he did not have a financial stake in the outcome of this action.

He stated that he received instructions from Sweden to commence the action and at the time—based on crude testing—he was of the view that the Xpresso infringed the 392 Patent. Mr. Macmillan confirmed that he did not know Dr. Brienza nor did he direct him to conduct any particular tests. [ 108 ] Mr. Macmillan was a credible witness. He gave his evidence in a thoughtful and straightforward manner. When he could not recall dates he said so. If he was uncertain, he explained why that was and if he was guessing or surmising he indicated that was the case. He was not at all argumentative.

He explained his challenges in reading and that he was better with drawings as he was a visual person given his dyslexia and attention deficit disorder related thereto.

(2) Jeffrey Fishbein [ 109 ] Mr. Fishbein has been a self-employed sales and marketing person in the home medical equipment industry since 1994. He represents a variety of manufacturers and primarily deals with mobility aiding devices including wheelchairs, rollators and wheelchair accessory products. Mr. Fishbein is active in the Ontario mobility aiding device market selling for manufacturers who compete with Human Care. [ 110 ] From March 1, 1997 to July 31, 2015 he sold products for Dana Douglas and then Human Care. At that time he did not sell any other brands.

He confirmed that he no longer sells Human Care products nor does he have any ties to them. [ 111 ] Mr. Fishbein described the launching of the Nexus rollator which he believed was in late 2004. To the best of his knowledge it was the first centre-folding rollator with a solid seat on the market. He described the reception of the Nexus in the market as " “a game changer, pretty much a homerun.” " He said that compared to the launch of the previous Human Care rollator, the Infiniti, the success of the Nexus was much faster and much greater.

It began to take significant market share from the market leader. [ 112 ] On cross-examination, Mr. Fishbein confirmed that no Nexus customer ever told him they liked the tension rod and he personally did not know what a tension rod was or recognize it when it was pointed out to him. [ 113 ] Mr. Fishbein presented his evidence in a straightforward manner. There is no reason to doubt it.

(3) Rick Synkowicz [ 114 ] Mr. Synkowicz is the national sales manager for Human Care, a position he has held since 2012. He is responsible for sales and marketing of the Plaintiff’s products in Canada. He began his sales career in 1997 with Coca-Cola. He joined the mobility aiding industry in 2009 working for Invacare Canada [Invacare], a competitor to Human Care. He joined Human Care after working for Motion Specialties in Ottawa. [ 115 ] Mr.

Synkowicz gave evidence of the annual sales revenue of Human Care and the contribution of the Nexus rollators to that revenue, confirming the numbers in the ASF of the parties. [ 116 ] Mr. Synkowicz indicated that when he was at Invacare there were discussions that the Nexus had taken over the market as the go-to product for therapists and consumers, displacing Invacare’s Legacy rollator as the number one selling brand. Invacare believed the reason they were displaced was because the Nexus was cross folding and had a firm but soft seat while the Legacy had a hard seat and did not cross fold.

He indicated that to compete with the Nexus cross fold Invacare launched the Jazz rollator that was cross folding. He

said it did not do well in the market because it had a nylon sling seat and, as he described it, the folding mechanism was " “a little clunky.” " [ 117 ] On cross-examination, Mr. Synkowicz confirmed that although he had identified the drawing of the rollator on the front of the 392 Patent as the Nexus III he was not an expert on patents or diagrams. [ 118 ] Other than the forgoing, the evidence Mr. Synkowicz presented, which was largely factual, was not challenged. B. Evolution’s Fact Witnesses

(1) José-Luis Pita [ 119 ] Mr. Pita is the Director of Sales and Marketing for Evolution when he first began in that role in May or June of 1994. He is in charge of the Evolution rollators that includes the Xpresso rollators. [ 120 ] Mr. Pita said that the origin of the Xpresso was that therapists had been calling to say the existing walkers took up too much space so could Evolution make one like a wheelchair that would fold up and stay in a storage position.

The front to back folding walkers had to be laid on the ground except for the Evolution rollators that could fold front to back and stay in a storage position. However, they still took up more space than the wheelchairs. [ 121 ] According to Mr. Pita, the therapists in Ontario did not want any other rollators but centre folding which he said they " “adopted.” " That resulted in Mr. Liu, the President of Evolution, commissioning in 2002 a professor at the University of Design of Polytechnic in Hong Kong to build a prototype based on what Mr.

Pita said was needed: a new, unique, very modern rollator with disc brakes in the front. [ 122 ] According to Mr. Pita, some of the resulting designs were really outlandish such as one with a 12-inch wheel that was clear plastic. There were also centre-folding rollators and ones with cableless braking systems. Ultimately, although the designers would come up with something, it was complicated and difficult to build as well as too expensive and extremely heavy. [ 123 ] In addressing the centre-folding designs, Mr.

Pita said he had showed some pictures of the prototype to customers who then wanted him to bring them in. However, it was determined that it was not practical. Mr. Pita said " “we had to go back to the drawing board.” " Evolution stopped working on that model around 2004 or 2005. [ 124 ] Mr. Pita indicated at that time that Evolution determined they needed to do something: a different, more conventional design was needed. The professor was commissioned again. Mr.

Pita said they looked at many different things ranging from mini-rollators to pediatric designs before they finally started to work on what became the Xpresso three years after. [ 125 ] The development process was that Mr. Pita would ask the dealers what they needed, what they would like to see. He gave that information to Mr. Liu who then worked with the professor to see if it was possible to manufacture. [ 126 ] Mr. Pita indicated they wanted to build a centre-folding walker.

Evolution was known in the industry as making the weight-bearing walker, the strongest one in the market, capable of having a 300 pound person use it. To accomplish that he said the design of the frame used tubing that was almost 50% larger than most other walkers. They incorporated a Roman arch as that design is known for strength. They wanted something that also looked good and was good for marketing. [ 127 ] Mr. Pita confirmed that the President, Mr. Liu, spent most of his time in China where he also has a business selling software for beauty salons.

He and his wife handle the day-to-day operations for Evolution while Mr. Liu looks at the overall operations or the " “total picture.” " As President, he is also the one who oversees quality control, negotiates with manufacturers, suppliers and shippers. [ 128 ] Mr. Pita’s evidence was largely factual and unchallenged other than the already mentioned Lane Patent story.

(2) Stephen Liu [ 129 ] The Operations Manager for Evolution is Mr. Stephen Liu. He joined Evolution in 2010 and has been the Operations Manager since 2012. He oversees the day-to-day operations including hiring and firing, the accounting system and payroll. He is paid |||||||||||||||||| annually as are each of his mother and father. [ 130 ] Mr. Stephen Liu testified that he was not involved with research and development [R&D] for Evolution. He has a degree in applied science from the University of British Columbia and he took a general management course. [ 131 ] Mr.

Stephen Liu described his oversight of the accounting system and the types of entries that are made to track sales, purchases and inventory. Sales are tracked through the customer orders which are inputted to the accounting system at face value, regardless of the currency involved. Any currency reconciliation is carried out separately, the details of which were unknown to Mr. Stephen Liu. The order information then generates an invoice. [ 132 ] Mr.

Stephen Liu stated on cross-examination that in preparing the financial productions for Evolution in this matter, he did so based on instructions from his father. [ 133 ] While he was a straightforward and believable witness, Mr. Stephen Liu’s evidence is of limited utility. In large measure, on the critical issues it was hearsay information from his father. C. Human Care’s Expert Witnesses

(1) Dr. David Brienza [ 134 ] Dr. Brienza is a Professor at the University of Pittsburgh’s Department of Rehabilitation Science and Technology. He received his Bachelor's Degree in Electrical Engineering from the University of Notre Dame in 1986, his Master's Degree in Electrical Engineering from the University of Virginia in 1988, and his PhD in Electrical Engineering from the University of Virginia in 1991. [ 135 ] Dr. Brienza has been working in the rehabilitation and assistive technology field since 1987.

He was selected as a Fellow of Rehabilitation and Assistive Technology Association of North America in 2007 and chaired, among others, the special interest group on seating and mobility. Dr. Brienza serves on several editorial boards, has taught courses on rehabilitative engineering, and founded a small business devoted to the development of wheeled mobility aids and seating products. Finally, Dr. Brienza has authored over 70 papers and has filed (or has pending) eight patent applications, including patents pertaining to wheelchairs and assistive devices. [ 136 ] Dr.

Brienza confirmed that he abided by this Court’s code governing expert reports. Moreover as part of his engagement, Dr. Brienza was given a redacted copy of the 392 Patent which did not list who were the inventors and owners of the patent. He did not have the pleadings prior to writing his report; nor did he know whether he was assisting the Plaintiff or Defendant. Finally, Dr. Brienza did not know what the allegedly infringing device was when he prepared his report on infringement. [ 137 ] Dr.

Brienza was qualified as an expert in the areas of rehabilitation sciences and assistive devices, which includes mobility aids such as wheelchairs and walkers and rehabilitation engineering design. Dr. Brienza’s expertise includes investigating, developing and evaluating technology for mobility and tissue integrity management in relation to assistive devices. [ 138 ] Dr. Brienza submitted an expert report on issues directly related to validity and infringement of the 392 Patent on September 23, 2016 [Expert Report]. In his report, Dr.

Brienza stated that the Xpresso contains " “all of the elements of claims 16 and 18 of the 392 Patent and that the skilled person would have the same understanding.” " [ 139 ] On May 19, 2017, Dr. Brienza filed a responding expert report [Responding Expert Report], in which he construed Claims 1 to 15 and 17 of the 392 Patent. He also responded to the findings of Mr. Schuch, the expert for Evolution. In particular, while Dr. Brienza agreed with some of the Mr. Schuch’s conclusions, he stressed that he did not agree with Mr.

Schuch’s construction that any particular term ought to be limited to the exact embodiment(

s) set out in the 392 Patent. [ 140 ] In support of his two reports, Dr. Brienza testified that the Xpresso rollator infringes upon the 392 Patent and that it is a valid patent. The relevant portions of Dr. Brienza’s reports and testimony are set out and considered throughout this Judgment and Reasons as the claims are construed and the issues of infringement and validity are determined. (

a) Evolution’s Critique of Dr. Brienza [ 141 ] Evolution has urged that Dr. Brienza’s claim construction generally be given less weight than Mr. Schuch’s. In brief, the crux of Evolution’s concerns are:

(1) Dr. Brienza failed to assess the common general knowledge before construing Claims 16 and 18; (2) he failed to consider all the claims together; and (3) he did not adequately consider and survey the prior art. [ 142 ] The allegation that Dr. Brienza failed to assess the common general knowledge is not borne out by the evidence. He confirmed in his examination-in-chief and on cross-examination that he had considered it. Mr. Schuch confirmed in his responding report and in his testimony that Dr. Brienza discussed the common general knowledge in his Expert Report. [ 143 ] Dr.

Brienza gave direct evidence to the effect that he did consider all the claims before writing his Expert Report, read through the specification and looked at the figures. His evidence was, in response to a challenge on cross-examination as to whether the claims were plain and unambiguous, " “I would always default to reading the whole patent in trying to understand it in its entirety.” " [ 144 ] A separate and specific argument was made that Dr. Brienza’s claims construction should be given little or no weight because he relied heavily on the " “essence of the invention” " in his claim construction.

That argument is discussed, and rejected, in the

section considering the validity of the 392 Patent. [ 145 ] Evolution alleged that Dr. Brienza did not adequately consider and survey the prior art. It asserted that only after Mr. Schuch’s initial report did Dr. Brienza realize that he " “had made an incurable error” " by not independently reviewing the prior art. This alleged error is fatal, according to Evolution, because Dr. Brienza needed to search the prior art to determine what the person of ordinary skill in the art could have discovered in a " “reasonable diligent search.” " (

b) Evolution’s Challenge to Dr. Brienza’s Credentials [ 146 ] Evolution argued that Dr. Brienza’s work and his teaching primarily pertained to three areas: pressure ulcer prevention, electrical control systems, and tele-rehabilitation. Evolution submitted that this means Dr. Brienza was not well-versed in mechanical engineering, especially in areas such as the design and development of wheelchair technology, support surface technology, and the technical standards development for mobility technology. [ 147 ] Evolution maintained that while Dr.

Brienza is an expert in rehabilitative sciences and engineering, he could not provide expert testimony in such areas where they related to mechanical devices and the analysis of weight-bearing mobility aiding devices because he is not a mechanical engineer. [ 148 ] Dr. Brienza acknowledged that the 392 Patent is generally directed to a person with mechanical engineering knowledge. He also explained the various ways that, through the course of his career, he has had to have and apply a very comprehensive understanding of mechanics and the application of mechanics to problems such as pressure ulcers.

He also has obtained a number of patents — many of which are mechanical devices such as a machine that is manipulated to form a shape to be used as a die for cushions.

[ 149 ] Dr. Brienza testified that through the electrical engineering program he took — which ultimately resulted in his PhD in electrical engineering — he acquired the necessary knowledge concerning statics and dynamics to discuss the issues in the 392 Patent. He teaches courses in rehabilitation engineering design, including teaching the fundamentals of the engineering design process and specific considerations for developing rehabilitation technology centred on the person and their needs. [ 150 ] Dr.

Brienza is the Director of the University of Pittsburgh Rehabilitation Engineering Research Centre on Wheeled Mobility where mobility devices are a focus of the Centre. The Centre's activities are roughly equally divided between development and research activities. He is a fellow in the Rehabilitation Engineering & Assistive Technology Association of North America [RESNA], and has been a member since 1988. RESNA is the only organization in North America specifically focussed on the field of rehabilitation technology. [ 151 ] Ultimately, the parties agreed that Dr.

Brienza could testify to the matters in his reports and he was accepted as an expert in the fields outlined earlier but reserving to Evolution the ability to argue the weight to be attributed to any of his opinions or statements which strayed into other areas. I am satisfied that Dr. Brienza is well qualified to opine on the matters in issue given his vast experience in the industry and his credentials.

(2) Nancy Rogers [ 152 ] Ms. Rogers received a Bachelor’s Degree in Administration from the University of Western Ontario. She has been certified by the Canadian Institute of Chartered Accountants as a Specialist in Investigative and Forensic Accounting. She is also certified in Financial Forensics. [ 153 ] The parties agree that Ms. Rogers is a Chartered Professional Accountant and a Chartered Business Valuator who is an expert in the areas of damage quantification, forensic accounting and business valuations. [ 154 ] Ms. Rogers produced three expert reports, which were filed at trial: 1 .

A two-volume report dated September 23, 2016 [the Rogers Report] in which Ms. Rogers quantified the profits earned by Evolution during the period December 1, 2010 to June 30, 2016 by Evolution allegedly infringing the 392 Patent in using and/or selling the Nexus rollator; Ms. Rogers also calculated Human Care’s claim for reasonable compensation during the period September 26, 2005 to November 30, 2010 which amount has been agreed to by the parties; 2 . A report dated May 18, 2017 in which Ms. Rogers provided a

summary of the revenue earned by Human Care from the sale of its Nexus Rollators and the total revenue earned by Human Care during the period September 26, 2005 and November 30, 2010; and 3 . An Addendum Report dated August 9, 2017 in which Ms. Rogers updated the calculations in the Rogers Report as result of a subsequent agreement between the parties by using a set unit price for the Xpresso rollators and incorporating two additional calculation scenarios. [ 155 ] Ms. Rogers applied an " “actual profits approach” " to calculate Evolution’s gross Xpresso product revenues and she attested to these facts at trial. Her evidence will be discussed in greater detail in the remedies

section of this Judgment and Reasons. (

a) Evolution’s Critique of Ms. Rogers [ 156 ] Evolution contends that Ms. Rogers " “was taking on the role of advocate rather than an independent and objective expert, who sought to justify disregarding costs to drive profits to unreasonable levels.” " In particular, Evolution maintains that Ms. Rogers failed to satisfy standard practices for investigative forensic engagements when she considered materials beyond her engagement and only performed calculations that she was asked to do as opposed to conducting a broader investigative analysis to develop her own hypothesis. [ 157 ] These allegations will be explored in the remedies section. D. Evolution’s Expert Witnesses

(1) Jonathon Schuch [ 158 ] Mr. Schuch is the Director of Occupational Health and Wellness at the University of Virginia Health System. He earned a Bachelor of Science degree in Biological Sciences from North Carolina State University in 1981 and a Master of Engineering degree in Biomedical Engineering from the University of Virginia in 1984. [ 159 ] Mr.

Schuch was qualified as an expert in the field of biomedical engineering and mechanical engineering with a concentration in the design of rehabilitation equipment, rehabilitation technologies, mechanical devices and machines, and in the analysis, and design of mobility aiding devices including but not limited to wheelchairs, walkers and rollators. His testimony was received on the basis that Human Care reserved the right to challenge his expertise on weight, based on cross-examination of his background. [ 160 ] Mr. Schuch prepared reports dated September 23, 2016 and December 15, 2016.

In them he opined on the validity of the 392 Patent, reviewed the claims, and found that Xpresso did not infringe on the 392 Patent. The design, for Mr. Schuch, is " “nothing more than an aggregation of older parts, with no novel or inventive outcome.” " (

a) Human Care’s Critique of Mr. Schuch [ 161 ] Human Care had concerns about Mr. Schuch’s background qualifications but agreed he could be qualified as an expert subject to cross-examination which would go to weight.

[ 162 ] Human Care made the point at trial that Mr. Schuch is not a mechanical engineer. He does not have an undergraduate or graduate degree in engineering that is ABET certified. He wrote an engineering exam many years after he finished school which allows him to be recognized as a professional engineer in the State of Virginia. There is no categorization recognizing him as a mechanical engineer that is however how he refers to himself. [ 163 ] Human Care argues that Mr. Schuch engaged in a narrow " “result-driven construction.” " Mr. Schuch allegedly interpreted words in claims in " “isolation, assigning them

definitions outside of the claims themselves.” " Human Care says that Mr. Schuch did not read the patent in a holistic manner, thus acting contrary to settled law on patent

interpretation. It is submitted that his evidence accordingly should be given less weight.

(2) Mark A. Gain [ 164 ] Mr. Gain is a Partner and Senior Vice President of Matson, Driscoll & Damico Ltd. He received his Bachelor of Commerce degree from McMaster University in 1978. Mr. Gain has over 35 years of experience in the field of investigative and forensic accounting. [ 165 ] It is agreed that Mr. Gain is a Chartered Professional Accountant and a Chartered Business Valuator who is an expert in the areas of business valuation, economic loss quantification and forensic accounting. [ 166 ] Mr.

Gain provided a report dated April 21, 2017 [the Gain Report] wherein he adopted a " “differential profits” " approach to calculate how much profit Evolution earned during the period from December 1, 2010 to June 30, 2016 as a result of its infringement of the 392 Patent. He also provided comments on the Rogers Report. [ 167 ] The amount which Mr. Gain calculated as a reasonable royalty to be paid to Human Care for Evolution’s Xpresso sales during the pre-grant period of the 392 Patent was accepted by the parties and agreed to in the ASF. (

a) Human Care’s Critique of Mr. Gain [ 168 ] While Human Care had no critique of Mr. Gain’s qualifications, it did object that the analysis in his report was incorrect in law and not supported by the evidence. Therefore, it should be given little to no weight. [ 169 ] These allegations will also be reviewed in the discussion on remedies. V. Issues [ 170 ] At the beginning of trial the parties submitted a joint statement of issues: 1 . Who is the person of ordinary skill in the art [POSITA] with respect to the 392 Patent? 2 . What was the common general knowledge of the POSITA as of September 26, 2005? 3 .

How would the POSITA have understood the following terms and limitations in the 392 Patent: A . " “first” " and " “second” " support; B . " “hinge means” " ; C . " “tension rod means” " ; D . " “handle” " ; E . " “first” " and " “second” " " “cross brace” " ; F . " “structurally interconnects” " ; and G . “extending between.” 4 . Whether the Xpresso rollator infringes Claims 16 and/or 18 of the 392 Patent. 5 . Whether the subject matter of the 392 Patent was invalid as of March 26, 2004 on any of the grounds of: A . Anticipation, because of United States Patent No. 5,348,336 [Fernie]; B .

Obviousness because of Fernie and other prior art listed in the Second Amended Statement of Defence; C . Overbreadth in that the claims are broader than the invention made or described in the specification; D . Being a mere aggregation of previously known parts each giving its own result without any new result flowing from the combination. [ 171 ] The list of terms and limitations has adjusted somewhat. The changes are: 1 . The dispute as to " “hinge means” " is now part of the dispute about how to interpret the supports. It will not be considered as a

separate element that needs to be construed. 2 . The term " “structurally interconnects” " is considered with respect to the tension rod means and the supports. 3 . " “Extending between” " is considered with the cross braces. 4 . Evolution has raised an additional issue, as a result of testimony at trial, regarding the " “pivotal connection” " between the supports and frame members. It is discussed in the consideration of infringement. [ 172 ] If the 392 Patent is valid and infringed then there are a number of issues related to remedies. These issues are separately set out in the remedies

section of this Judgment and Reasons. VI. The Claims in Issue [ 173 ] Claims 16 and 18 are in issue for infringement.

All eighteen claims are in issue for validity. [ 174 ] Claim 16 reads: A mobility aiding device adjustable between a use and a storage position comprising: a first frame member having a pair of ground engaging means at a lower end thereof for engaging ground thereunder; a second frame member having a pair of ground engaging means at a lower end thereof for engaging the ground; a first support pivotally connected to the first frame member; a second support pivotally connected to the second frame member and pivotally connected to the first support, the first and second supports for supporting a weight above the ground in the use position; hinge means pivotally connecting the first support to the second support enabling the first and second supports to pivot towards each other into the storage position; tension rod means for distributing the weight between the first and second supports, said tension rod means being adjustable between an extended position in which said tension rod structurally interconnects said first and second supports, when the device is in the use position, and a released position enabling the device to be adjusted to the storage position; a first cross brace extending between the first support and the second frame member for transferring at least a portion of the weight to the second frame member; and a second cross brace extending between the second support and the first frame member for transferring at least a portion of the weight to the first frame member. [ 175 ] Claim 18 is identical to Claim 16 other than it does not mention the two cross braces (the last two paragraphs of Claim 16) and, it adds a handle as the last paragraph: a handle extending through said first support for pivoting said tension rod into the release position, and for pivoting said first and second supports into the storage position. [ 176 ] As set out in the joint statement of issues, several terms in the 392 Patent need to be construed by the Court.

The " “hinge means” " dispute has been subsumed within the dispute with respect to the term " “first” " and " “second” " supports. As a result, there are now six claim elements to be construed. In addition, Evolution contends that an additional issue of construction arose during trial when Dr. Brienza construed the term " “pivotally connected” " with reference to the supports and frame members in two different ways. Pivotally connected is not separately construed as it is part of the construction of both " “first” " and " “second” " supports and cross braces . VII. Claims Construction A.

The Law [ 177 ] The Supreme Court of Canada has established in several cases the law to be applied to claims construction. In the course of so doing, it has incorporated jurisprudence from the United Kingdom and occasionally from patent texts and scholarly articles. [ 178 ] An issued patent is an enactment within the definition of " “regulation” " as set out in ss. 2(1) of the

Interpretation Act , RSC, 1985, c I-21 and it must be given such

interpretation " “as best ensures the attainment of its objects” " according to s. 12. When interpreting a patent the context in which words are used will " “provide clues to their

interpretation and a safeguard against their misinterpretation” " : Whirlpool Corp v Camco Inc , 2000 SCC 67 at para 49 (e) [ Whirlpool ]. [ 179 ] Cognizant of the issues and arguments in this matter, I find that the

summary provided by Mr. Justice Locke at paragraphs 71 to 79 in Pollard Banknote Limited v BABN Technologies Corp , 2016 FC 883 provides a useful

summary of the law to be applied: [71] Claims construction is antecedent to consideration of both validity and infringement issues: Whirlpool Corp v Camco

Inc, 2000 SCC 67 at para 43 [Whirlpool]. [72] A patent is not addressed to an ordinary member of the public, but to a worker skilled in the art described as: [A] hypothetical person possessing the ordinary skill and knowledge of the particular art to which the inventionrelates, and a mind willing to understand a specification that is addressed to him. This hypothetical person hassometimes been equated with the “reasonable man” used as a standard in negligence cases.

He is assumed to bea man who is going to try to achieve success and not one who is looking for difficulties or seeking failure. [Free World Trust v Électro Santé Inc, 2000 SCC 66 at para 44, quoting Fox, Harold G, The Canadian Law andPractice Relating to Letters Patent for Inventions, 4th ed, Toronto: Carswell, 1969 at 184] [73] As stated in Catnic Components Ltd v Hill & Smith Ltd, [1982] RPC 183 at 242-243, and quoted in Whirlpool at para44: A patent specification should be given a purposive construction rather than a purely literal one derived fromapplying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training toindulge.

The question in each case is: whether persons with practical knowledge and experience of the kind ofwork in which the invention was intended to be used, would understand that strict compliance with a particulardescriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement ofthe invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way theinvention worked. [Emphasis in original.] [74] The claims language will, on a purposive construction, show that some elements of the claimed invention are essentialwhile others are non-essential: Free World Trust v Électro Santé Inc, 2000 SCC 66 at para 31 [Free World Trust].

Claimelements are presumed to be essential, and a party alleging otherwise bears the onus of establishing non-essentiality. [75] In construing the claims purposively, it is important to bear in mind that the language of the claims is prime: FreeWorld Trust at para 40. [76] As stated in Consolboard Inc v MacMillan Bloedel (Saskatchewan) Ltd, (SCC), [1981] 1 SCR 504 at520: We must look to the whole of the disclosure and the claims to ascertain the nature of the invention and methodsof its performance, (Noranda Mines Limited v.

Minerals Separation North American Corporation [ (SCC), [1950] S.C.R. 36]), being neither benevolent nor harsh, but rather seeking a construction which isreasonable and fair to both patentee and public. There is no occasion for being too astute or technical in thematter of objections to either title or specification for, as Duff C.J.C. said, giving the judgment of the Court inWestern Electric Company, Incorporated, and Northern Electric Company v.

Baldwin International Radio ofCanada [ (SCC), [1934] S.C.R. 570], at p. 574, “where the language of the specification, upon areasonable view of it, can be so read as to afford the inventor protection for that which he has actually in goodfaith invented, the court, as a rule, will endeavour to give effect to that construction.” Sir George Jessel spoke tolike effect at a much earlier date in Hinks & Son v. Safety Lighting Company [(1876), 4 Ch. D. 607].

He said thepatent should be approached “with a judicial anxiety to support a really useful invention.” [77] If there is more than one construction that can be reasonably reached, the Court must favour the construction whichupholds the patent: Letourneau v Clearbrook Iron Works Ltd, 2005 FC 1229 at paras 37 and 38; Pfizer Canada Inc vCanada (Minister of Health), 2005 FC 1725 at para 52. [78] There is arguably an inconsistency between the principle that claim construction is antecedent to consideration ofvalidity issues, and the principle that one should favour a construction that upholds the patent (or approach that patent with ajudicial anxiety to support a really useful invention).

It would seem that one can favour a c

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