ABB Technology AG, ABB Inc. v. Hyundai Heavy Industries Co., Ltd. , 2015 FCA 181

ABB has appealed two earlier judgments of the Federal Court: first, ABB's loss on the merits of a patent infringement action and the declaration that its two patents are invalid (2013 FC 947, first summarized here); second, the award of $350,000 in costs in favour of Hyundai (2013 FC 1050).

The patents relate to gas-insulated switchgear assemblies used in electrical power transmission. The inventions were aimed at improving the safety of workers conducting maintenance on the circuit breaker. ABB alleged that Hyundai infringed its patents when it sold gas-insulated switchgear assemblies to B.C. Hydro.

The main issue on appeal related to the construction of the claims. The Federal Court of Appeal held that while the standard of review for construction is correctness, the appellate court will defer to the lower court's appreciation of the evidence, particularly expert evidence, which affects construction. Where the expert evidence affects the construction, the appellant must show the court committed a palpable and overriding error in preferring one expert over another.

The key phrase in the first of the patents related to “a moveable switch contact element”. The prior art disclosed knife blade switches and so if the phrase were construed to include that type of switch, the claim would be invalid. Although ABB argued the patent should be construed in a manner that would uphold the patent, the appellate court found that a purposive construction should be treated with caution and it does not mean the court must adopt any arguable interpretation that would uphold the patent. The finding that the patent included knife blade switches was upheld, and the patent was found to be invalid.

The second patent was reviewed under the law of construction as described above, and no error was found in the construction that resulted in the patent being invalid for obviousness.

The Federal Court of Appeal did not find any palpable and overriding errors with the assessment of costs and dismissed that appeal as well.