Narrow Issues Of Claim Construction, Double Patenting, And Costs Determined On Appeal

A recent decision from the Federal Court of Appeal (FCA) demonstrates the importance of focusing on the fundamentals of claim construction. At trial, NCS asserted that Kobold infringed five of its patents and Kobold asserted that NCS infringed one of its patents. Invalidity was alleged with respect to all patents at issue. Kobold was successful at trial – the Trial Judge of the Federal Court (FC) held that NCS' patents were invalid and that Kobold's patent was valid and infringed. The FC also ordered NCS to pay $1.8 million in costs plus disbursements, forthwith.

NCS appealed the decision to the Federal Court of Appeal (FCA). The FCA noted that the scope of the appeal changed substantially over the course of the matter, and almost immediately before the hearing, focused only on construction of the Asserted Claims of Kobold's patent and the finding regarding obviousness double patenting. The FCA allowed NCS' appeal with respect to the findings of infringement and