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Federal Court of Appeal Dismisses Bauer’s Appeal in Patent Infringement Case

September 1, 2021


In Bauer Hockey Ltd. v Sport Maska Inc. (CCM Hockey), 2021 FCA 166, the Federal Court of Appeal (“FCA”) affirmed the Federal Court (“FC”)’s decision, which dismissed Bauer Hockey Ltd. (“Bauer”)’s patent infringement actions against Sport Maska Inc., d.b.a. CCM Hockey (“CCM”) and found that the claims in issue of Bauer’s Canadian Patent No. 2,214,748 (“748 Patent”) were invalid due to obviousness.


The 748 Patent addressed a structural component of a skate boot named a “quarter”, traditionally made in two pieces. The 748 Patent contemplates making the quarter in one piece, rather than two. Bauer claimed that a wide range of CCM skates infringed on the 748 Patent.

In its analysis, the FC highlighted the Patent Act’s requirement that an invention not be obvious. After applying the analytical framework for obviousness previously laid out by the Supreme Court of Canada, the FC found the claims against CCM to be invalid for obviousness.

Standard of Review

The FCA determined that the appropriate standard of review was the deferential standard of palpable and overriding error and indicated that it could detect no such errors.

The FCA found that that the FC weighed the evidence appropriately. Absent a palpable and overriding error, Bauer’s arguments with respect to obviousness — which amounted to asking the FCA to reweigh evidence — were not permissible.

Bauer also argued that the Trial Judge should be subject to less deference due to his inexperience, having only previously been involved with one other patent infringement case.

The FCA firmly dismissed this argument, finding the idea that the degree of appellate intervention should vary depending on the judge’s experience to be unwieldy and inconsistent with the accepted appellate standard of review. If this were the case, it would require every appeal court to consider a judge’s background on every appeal. In the Court’s view, this would result in standards of review on a spectrum, rather than on the two defined standards.

Section 53.1 of the Patent Act

The FCA also clarified the Trial Judge’s interpretation of section 53.1 of the Patent Act.

Section 53.1 of the Act opens the door to consideration of a patent’s prosecution history when interpreting the claims. The Trial Judge noted that, once there is an issue of claims construction, section 53.1 is applicable and thus prosecution history is admissible as evidence. The FCA disagreed, clarifying that the purpose of subsection 53.1(1) is to be a tool against inconsistent claims constructions and is applicable to patentees who take inconsistent positions concerning the meaning of a claim during prosecution of a patent application, and another position during litigation on the resulting patent.

That is, in order for section 53.1(1) to apply, a patentee’s inconsistent representation must first be identified.


Author: Farrah Kudus


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