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On Thin Ice: Court Dismisses Snowmobile Infringement Action

In Arctic Cat Inc v Bombardier Recreational Products, Justice Roy of the Federal Court dismissed Arctic Cat’s action against Bombardier for infringement of Canadian Patent No. 2,322,738.

Both Arctic Cat and Bombardier sell snowmobiles powered by two-stroke engines in Canada. In these engines, a combination of fuel and air in a cylinder is ignited when the piston reaches a certain position. The position at which ignition occurs traditionally varies with the speed of the engine.

Arctic Cat asserted certain claims of the 738 Patent that relate to the selection or modification ignition patterns based on the temperature of exhaust gas. Bombardier counterclaimed that the 738 Patent was invalid.

Justice Roy construed the “ignition patterns” element of the asserted claims as being distinct from an “ignition point”: an ignition pattern is a collection of the ignition points across various engine speeds. Ignition patterns can differ based on factors such as the length of time that the engine has been turned on, the altitude, and the fuel type.

Applying this construction, Justice Roy held that the Bombardier snowmobiles did not infringe the 738 Patent because they selected an ignition pattern and then applied a correction to individual ignition points based on the exhaust gas temperature. Because the ignition pattern itself was neither selected nor modified based on the exhaust gas temperature, Justice Roy concluded that the 738 Patent was not infringed.

Justice Roy also considered whether the 738 Patent was obvious in light of prior patent documents. Justice Roy concluded that the inventive concept of both the 738 Patent and the prior patent documents was the use of exhaust gas temperature to control ignition timing, notwithstanding the 738 Patent’s emphasis on ignition patterns. Justice Roy therefore held that the 738 Patent was obvious.

Bombardier also successfully applied the “Gillette defence”, emanating from the 1913 decision of the House of Lords in Gillette Safety Razor Co v Anglo-American Trading Co, where a patentee seeking a broad construction in order to capture the Defendant’s activities ran into invalidating prior art:

If the claims of such a Patent were so wide as to include it, the Patent would be bad, because it would include something which differed by no patentable difference from that which was already in possession of the public. Such a Patent would be bad for want of novelty. If the claims were not sufficiently wide to include the Defendant’s razor, the patentee could not complain of the public making it. In other words, the Defendants must succeed either on invalidity or on non-infringement.

Here, Justice Roy held that Arctic Cat’s attempt to distinguish over a piece of prior art opened the door for Bombardier to argue that it did not infringe the 738 Patent:

[302] … AC never resolved the conflict between the language in the claims around “ignition pattern” and the ignition point. It ignores for all intents and purposes the notion of pattern when arguing infringement, but it brings it back to defend against invalidity. That is an awkward position to be in. That plays into the hands of BRP’s “Gillette defense”. In order to defend against invalidity AC is forced to argue that its Patent is different from the prior art: that difference is the use made of the ignition pattern. However, in so doing it opens the door for BRP to escape being captured by its Patent.

A copy of the public decision may be found here.

Arctic Cat has appealed Justice Roy’s decision.