Insights On The Independence Of Expert Evidence

In the recently released decision dTechs EPM Ltd v British Columbia Hydro and Power Authority and Awesense Wireless Inc, theFederal Court of Appeal ("FCA") weighed in on the role and independence of experts in patent cases. In particular, the FCA provided guidance on (1) the role counsel may play in preparing expert reports; (2) an expert's role in claim construction; and (3) the difference in the role of an expert where anticipation is alleged based on prior use versus prior publication.

This case also addresses other issues, such as the procedure for a motion for new evidence on appeal, but this blog focuses only on the issues relating to experts.

Background

This decision is an appeal from the Federal Court decision dismissing dTechs' claim for infringement of Canadian Patent No. 2,549,087 ("the 087 Patent"). The trial judge, Fothergill J., also held that the claims of the 087 Patent were invalid for anticipation and obviousness. The 087 Patent relates to