Claim construction is a hot topic within the patent community at this time, with many practitioners seeking clarity on how to reconcile the Canadian Intellectual Property Office’s (CIPO’s) recent guidelines regarding claim construction, particularly in relation to medical diagnostics and computer implemented inventions, with the law as set down by the Canadian Courts. This Federal Court of Appeal case (ABB v. Hyundai, 2015 FCA 181) appears to affirm the Supreme Court’s position on claim construction, which notes that the Patent Act promotes adherence to the language of the claims read in an informed and purposive way (Free World Trust v. Électro Santé (2000 SCC 66)).
The patent in this case relates to an inspection window fitted in a circuit breaker housing to assist maintenance operators in visually identifying that the circuit breaker is grounded. Independent claim 1 recites “an inspection window fitted in the housing such that positions of a moveable switch-contact element can be seen from the outside”.
One of the issues in this case was how to construe claims. In particular, ABB argued that “moveable switch-contact element” should be interpreted as only referring to a sliding switch-contact, and not to a knife blade switch-contact. Hyundai countered that the “moveable switch-contact element” would cover both types of switches.
The Federal Court of Appeal noted that, when construing claims, the Federal Court was right to avoid construing the patent in a manner that would unduly neglect its wording. That is, where patent language can bear more than one equally plausible meaning, one must adopt a “reasonable view” of patent language to “afford the inventor protection for that which he has actually in good faith invented”. Furthermore, the Federal Court of Appeal noted that, even in the case where the inventor has mistakenly claimed too much, the Courts are limited to interpreting the claims, not re-drafting them.
Therefore, in construing independent claim 1, the Federal Court of Appeal determined that the term “moveable switch-contact element” included both a sliding and a knife blade switch-contact noting that the inventors were aware of both types of switches and the language of the patent employs a generic reference to a moveable contact that does not distinguish between switch types.
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