Eurocopter v. Bell Helicopter Textron Canada
I want to make you aware of the case of Eurocopter v. Bell Helicopter TextronCanadadecided earlier this year by Mr. Justice Martineau of the Federal Court relating to a patent on a skid type landing gear for helicopters. This case may alter the approach taken when drafting mechanical patents and when trying to “design around” mechanical patents.
In patents relating to pharmaceuticals, it is common to describe one or more specific compounds and their medicinal effect, but to claim a broader class of compounds expected to have a similar medicinal effect. To deal with this common disparity in pharmaceutical patents between what is described and what is claimed, Canadian courts apply what is referred to as the “sound prediction” doctrine, which essentially requires that there be a proper factual foundation and line of reasoning to support a prediction of a promised utility or effect. If there is not a proper factual foundation and line of reasoning in the patent application, the patent is invalid; even if the inventor turns out to be correct.
In the Eurocopter Case, the Judge has applied the doctrine of “sound prediction” to mechanical patents. This new development raises a warning flag for all patent agents involved in the protection of mechanical inventions. A good patent agent wants to protect not just the client’s invention, but also possible “variations”. In the Bell Helicopter case, the landing gear had a forwardly angled support member to reduce ground resonance. However, the patent also illustrated and described a “variation” of landing gear with a rearwardly angled support member. Under cross-examination representatives of Bell Helicoptor admitted that a landing gear with a rearwardly angled support member had never been built, nor had mathematical calculations been made to confirm that a rearwardly angled support member would work the same as a forwardly angled support member. There was nothing in the patent nor in the evidence before the Judge that provided a “sound prediction” for confirming that a rearwardly angled support member would work. For this reason, the Judge invalidated any claim to a rearwardly angled support member, whether or not it ultimately turns out to work.
Bell Helicopter was aware of the Eurocopter patent and set out to “design around” the patent. This “design around” was unsuccessful, as the Judge found that Bellhad used a forwardly angled support member and, therefore, infringed. Eurocopter asked for punitive damages to punish Bell Helicopter, in addition to any other damages to which they may be entitled. Punitive damages is an extraordinary form of remedy, not usually awarded in these types of cases. Mr. Justice Martineau broke new ground in granting the request and awarding punishment damages stating ”Punitive damages are required in this case not only to punish Bell but to deter others from acting in a similar manner. The fact that only twenty-one Legacy gears were used by or made for Bell is besides the point and does not take into account the reality of the length of time, the gravity and planification of the infringement. Bell’s overall conduct is highly reprehensible and constitutes a callous disregard for the rights of Eurocopter who was forced to institute the present action”. The amount of the punitive damages, as well as the amount of damages for the twenty-one landing gears Bell Helicopter manufactured, is to be determined in a damages hearing.
As it is common for patent agents to be hired to assist in “designing around” existing patents, this aspect of the Eurocopter case raises another red flag. It would appear that if one undertakes a “design around”, one had better ensure that it is done properly. This case is currently under appeal, but stands as Canadian law unless overturned.