On May 24, 2017, in OrthoArm Incorporated v GAC International LLC, 2017 ONCA 418, the Ontario Court of Appeal dismissed an appeal of the trial judge’s finding of non-infringement of a US patent, 2015 ONSC 5097. The appellant, OrthoArm Incorporated, invented a type of “self-ligating” orthodontic bracket covered under US Patent No. 5,630,715 (the “715 Patent”), and had licensed worldwide rights to manufacture, use, market, and sell products under the 715 Patent to the respondent, GAC International. The respondent later developed orthodontic brackets with a third party manufacturer and began selling these (the “Accused Products”). The appellant commenced an action against the respondent for damages and other relief for breach of a licensing agreement.

The issue at trial was whether the Accused Products infringe the appellant’s 715 Patent, which proceeded based on US patent law. The trial judge found that the Accused Products do not infringe the 715 Patent, since all of the patent claims include the “slidable locking shutter” element that is not present in the Accused Products. On appeal, the appellant argued that the trial judge erred in the application of US claim construction principles, including failing to give the words “movable” and “slidable” their common, ordinary and distinct meanings. The Court of Appeal applied the correctness standard of review and determined there was no error, noting that words must be interpreted within the context of the specification. The Court of Appeal also dismissed the appeal in respect of the costs awarded against the appellant.

Summary By: Anna Troshchynsky

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