Federal Court Reinstates Patent Claim Invalidity Ruling Despite New Evidence Concerning Expert Witness’ Independence

On October 6, 2026, the Federal Court (the Court) issued its decision in dTechs EPM Ltd. v British Columbia Hydro and Power Authority, 2026 FC 1235, reinstating its ruling that claim 4 of Canadian Patent No. 2,549,087 (the 087 Patent) was invalid. The Court had previously dismissed the action of dTechs EPM Ltd. (dTechs) against British Columbia Hydro and Power Authority (BC Hydro) and Awesense Wireless Inc. for infringement of the 087 Patent and declared the patent claims at issue invalid.

On appeal, the Federal Court of Appeal (FCA) affirmed the Court’s infringement finding, but concluded that new evidence filed on the appeal could have affected the Court’s finding that claim 4 was anticipated or obvious, and permitted dTechs to seek a redetermination on this issue (as previously reported by the E-TIPS® Newsletter here). The new evidence suggested that Mr. Shepherd (Shepherd), BC Hydro’s expert, did not author the first drafts of his reports, which dTechs asserted supported its allegation that Shepherd was not an independent and unbiased witness. dTechs asserted that it would have succeeded at trial if Shepherd’s expert evidence had been excluded or given no weight.

On the redetermination, the Court found that the new evidence admitted on appeal had no impact on the weight attributed to Shepherd’s evidence in the Court’s decision. The Court noted that Shepherd was deceased and that the only further relevant evidence of his involvement came from Mr. Falany (Falany), Shepherd’s business partner.  The Court reasoned that the only question before it was whether the new evidence on the redetermination changed the weight to be accorded to Shepherd’s expert evidence. The Court noted that Falany’s account of the process was consistent with Shepherd’s expert reports and satisfactorily explained Shepherd’s docket entries. The Court was satisfied that Shepherd’s expert reports reflected his own opinions.

Accordingly, the Court reinstated its ruling respecting the invalidity of claim 4 of the 087 Patent.

Summary By: Uday Bahal