Osler acted for Awesense as co-defendant in a patent infringement action, and a subsequent appeal, filed by dTechs EPM Ltd against Awesense and British Columbia Hydro and Power Authority. By judgment released May 26, 2023, the Federal Court of Appeal dismissed dTechs’ appeal in its entirety as it related to Awesense’s alleged infringement.
As to Awesense, the case addressed the liability of a hardware and software supplier for the alleged infringement of its customer, BC Hydro. In 2021, following a 10-day trial, the Federal Court dismissed the infringement claim against Awesense, confirming that: “There is no infringement of a patent in selling an article that does not in itself infringe the patent, even when the vendor knows that the purchaser buys the article for the purpose of using it in the infringement of the patent.” See Osler Update.
On appeal, dTechs brought a motion for fresh evidence which, it said, indicated that BC Hydro’s sole expert witness had failed to act as a disinterested and independent expert. A judge of the Federal Court of Appeal admitted the fresh evidence and allowed dTechs to amend its notice of appeal to include this new ground.
In detailed reasons addressing technical issues relating to fresh evidence motions, the Federal Court of Appeal (Gauthier JA) affirmed the Federal Court’s finding of non-infringement against Awesense, noting that the new evidence could have “absolutely no bearing whatsoever” on Awesense’s liability of this respondent/defendant. The Court of Appeal also upheld most of the trial judge’s findings relating to the invalidity of dTechs’ patent at issue.
The Osler team was led by Vincent de Grandpré, with assistance from Kenza Salah, Leah McGurn and Yael Mansour (Intellectual Property).