Bell Helicopter Textron Canada Limitee v Eurocopter, 2013 FCA 261

 Background

The Federal Court of Appeal declined a motion under Rule 397 of the Federal Court Rules requesting reconsideration. Eurocopter submitted the motion to have the Court modify its reasons to reflect that the specification of the ‘787 Patent provides an embodiment with the advantage of improved ground resonance. It is then suggested by Eurocopter that this should lead the court to reconsider its judgment. The claim at issue is claim 15. This claim was invalidated by Justice Martineau on the basis that it lacked demonstrated utility or sound prediction. The motion is based upon the presumption by Eurocopter that paragraphs 157 and 158 (and consequently the mistake) are a result of inadvertence or clerical error.

 Analysis

The motion is an attempt to argue a ground of appeal that had already been raised. Rule 397 is not meant to allow a party to reargue the same issue a second time. The findings of the Court of Appeal and of the Trial Judge were based on the facts and expert testimony. The submissions made by Eurocopter on this motion were expressly rejected previously. Eurocopter had the opportunity to provide evidence of testing or calculations that support a sound line of reasoning – however they failed to do so.

Finally the affidavit of Julie Desrosiers (an attorney representing Eurocopter) is struck from the record as it is argumentative, irrelevant and provides an interpretation of the ‘787 Patent by someone not skilled in the art or science to which the patent pertains.