Date: 20170224  
Docket: T-2025-11  
Citation: 2017 FC 207  
Ottawa, Ontario, February 24, 2017  
PRESENT: The Honourable Mr. Justice Roy  
BETWEEN:  
BOMBARDIER RECREATIONAL PRODUCTS  
INC.  
Plaintiff/Defendant by Counterclaim  
and  
ARCTIC CAT INC. AND ARCTIC CAT SALES  
INC.  
Defendants/Plaintiffs by Counterclaim  
PUBLIC JUDGMENT AND REASONS  
(Confidential Judgment and Reasons issued February 24, 2017)  
Page: 2  
TABLE OF CONTENTS  
I.  
Introduction.............................................................................................................................. 5  
II. Description of the Patents ........................................................................................................ 8  
A.  
B.  
C.  
D.  
The 106 Patent.............................................................................................................. 8  
(1) Disclosure ......................................................................................................... 10  
(2) Claims ............................................................................................................... 16  
The 813 Patent............................................................................................................ 19  
(1) Disclosure ......................................................................................................... 20  
(2) Claims ............................................................................................................... 20  
The 964 Patent............................................................................................................ 24  
(1) Disclosure ......................................................................................................... 25  
(2) Claims ............................................................................................................... 30  
The 264 Patent............................................................................................................ 36  
(1) Disclosure ......................................................................................................... 37  
(2) Claims ............................................................................................................... 42  
III. The Evidence / Witnesses ...................................................................................................... 48  
A.  
BRP’s witnesses ......................................................................................................... 48  
(1) Jean-Yves LeBlanc ........................................................................................... 48  
(2) José Boisjoli...................................................................................................... 50  
(3) Bruno Girouard ................................................................................................. 52  
(4) Berthold Fecteau ............................................................................................... 59  
(5) Jérôme Wubbolts .............................................................................................. 62  
(6) Peter Watson..................................................................................................... 64  
Page: 3  
(7) Steward Strickland............................................................................................ 67  
(8) Jonathan Cutler ................................................................................................. 70  
(9) Robert Strauss................................................................................................... 79  
(10) Bernard Guy...................................................................................................... 81  
AC’s witnesses ........................................................................................................... 86  
(1) Brad Darling...................................................................................................... 86  
(2) Ken Fredrickson................................................................................................ 91  
(3) Brian Sturgeon .................................................................................................. 93  
(4) Douglas Wolter ................................................................................................. 95  
(5) Troy Halvorson ................................................................................................. 97  
B.  
IV. Construction of the claims ................................................................................................... 104  
A.  
B.  
C.  
The person of skill in the art (POSITA)................................................................... 104  
Common general knowledge.................................................................................... 106  
Construction of the Patents-in-suit........................................................................... 109  
(1) Rider Position Patents..................................................................................... 115  
(2) Frame Construction Patent (the 264 Patent) ................................................... 131  
V. Infringement......................................................................................................................... 142  
A.  
B.  
C.  
The law..................................................................................................................... 142  
264 Patent................................................................................................................. 144  
The Rider Forward Patents....................................................................................... 148  
(1) The 106 Patent ................................................................................................ 149  
(2) The 813 Patent ................................................................................................ 150  
(3) The 964 Patent ................................................................................................ 152  
(4) Seat disposed on the tunnel............................................................................. 154  
(5) The measurements .......................................................................................... 155  
Page: 4  
VI. Validity of Rider Position Patents........................................................................................ 179  
A.  
B.  
C.  
D.  
E.  
F.  
Anticipation: The Law.............................................................................................. 181  
Anticipation: application to the facts........................................................................ 188  
Obviousness: the law................................................................................................ 201  
Obviousness: application to the facts ....................................................................... 205  
Adequate disclosure: indefiniteness and insufficiency ............................................ 212  
The 964 Patent: other invalidity arguments ............................................................. 234  
(1) Material misrepresentation.............................................................................. 234  
(2) The 964 Patent is anticipated by the 106 Patent and the 813 Patent............... 236  
(3) Prior public disclosure .................................................................................... 237  
VII. Objections ............................................................................................................................ 238  
A.  
B.  
Reply evidence and documents not listed in affidavits of documents ..................... 239  
Questions of law and testing .................................................................................... 240  
VIII. Conclusion............................................................................................................................ 246  
Page: 5  
PUBLIC JUDGMENT AND REASONS  
I.  
Introduction  
[1]  
This is an action for infringement under the Patent Act (RSC, 1985, c P 4) [Patent Act]  
launched by Bombardier Recreational Products Inc., a manufacturer of snowmobiles with its  
headquarters in Canada, against another manufacturer of snowmobiles, Arctic Cat, Inc., and its  
wholly-owned subsidiary, Arctic Cat Sales Inc., which is responsible for marketing and sales, as  
well as service activities, for Arctic Cat snowmobiles.  
[2]  
Bombardier Recreational Products Inc. (BRP or the Plaintiff) is incorporated pursuant to  
the Canada Business Corporations Act (RSC, 1985, c C-44). It manufactures and sells, among  
other recreational products, snowmobiles under the trade-mark “Ski-Doo”. Its head office remains  
in Valcourt, Quebec, where it started its operations. From a division of Bombardier Inc. that  
manufactured and sold snowmobiles, Bombardier Recreational Products Inc. was spun off  
Bombardier Inc. in 2003. It now operates on its own as a corporate entity.  
[3]  
Similarly, the head office of the Defendants, both corporations incorporated under laws of  
the State of Minnesota, has been and continues to be located in Thief River, in the State of  
Minnesota. They are also in the business of manufacturing and selling snowmobiles. Indeed, the  
evidence at trial showed that the parties compete in the same market together with two other  
manufacturers, Yamaha and Polaris.  
 
Page: 6  
[4]  
It is not an overstatement to say that the competition between the four main manufacturers  
in North America is fierce in a market that has been referred to as being “mature”. It appears that  
the sales of snowmobiles have been declining in the last few years.  
[5]  
Bombardier Recreational Products Inc. takes to court Arctic Cat, Inc. and Arctic Cat Sales  
Inc. (AC or the Defendants) because it is alleged that AC has infringed four Patents owned by  
BRP. They are Canadian Patents 2,293,106, 2,485,813, 2,411,964, and 2,350,264. They will be  
referred to herein as the “106 Patent”, the “813 Patent”, the “964 Patent” and the “264 Patent”.  
[6]  
AC does not only deny in this action infringing the four Patents, but it also asserts the  
invalidity of each of the Patents for a variety of reasons: anticipation, obviousness, double  
patenting, indefiniteness, lack of utility, claiming a desired result, claims that are broader than the  
invention made, and material misrepresentation. As a result, AC counterclaims: it seeks a  
declaration that the asserted claims of the four Patents are invalid, making them void and of no  
effect.  
[7]  
This trial also included the evidence about the remedies sought, assuming that there would  
be a finding of infringement of one or many of the claims asserted by BRP, with the claims being  
ruled to be valid. BRP is asking for:  
A declaration that the four Patents have been infringed by AC;  
A declaration that the said four Patents are valid; I note that there is no allegation  
that BRP does not own the Patents-in-suit;  
Page: 7  
An order, in the nature of a permanent injunction, restraining AC from infringing  
all and any of the four Patents-in-suit as well as selling, making, using or  
distributing in Canada any snowmobile or component thereof that would infringe  
any of the four Patents; furthermore, the order sough would restrain AC from  
inducing the sale, the order for sale, the fabrication, the construction, the use or  
distribution in Canada of a snowmobile or component thereof infringing any of the  
four Patents;  
Although the Plaintiff is not seeking an accounting of profits by the Defendants, it  
seeks damages that include an assessment of profits made by AC for selling  
snowmobiles that would have been sold by BRP but for the infringement of patents.  
As for the remaining snowmobiles sold by AC using the technology developed and  
patented by BRP, a reasonable royalty is sought. BRP is not claiming any more  
punitive damages, but pre-judgment and post-judgment interest are of course asked  
for by the Plaintiff;  
For its part, AC calls for a declaration that it did not infringe any of the Patents or  
that the Patents are invalid in case some claims were ruled to have been infringed;  
Both parties are claiming costs at a higher level than that provided for at Rule 407  
of the Federal Courts Rules (SOR/98-106), as amended. It was decided that more  
complete representations will be made on the costs issue once judgment has been  
rendered. Accordingly, this judgment will not deal with the issue of costs;  
Page: 8  
Out of 247 claims coming from the four Patents-in-suit, 56 have been asserted  
originally by BRP covering some 378 (there continued to be uncertainty as to how  
many models were captured by the action until the end when counsel for BRP  
advanced the number 378) snowmobile models manufactured and sold by AC in  
Canada between the model year 2007 and 2015. This law suit is concerned with  
some 44 000 snowmobiles, colloquially referred to as “sleds”.  
II.  
Description of the Patents  
[8]  
The four Patents at issue in this proceeding cover some 247 claims, of which 49 claims  
remain asserted following the close of the trial. Three of the Patents (the 106, the 813, and the 964)  
relate to similar purported inventions, essentially new configurations for a snowmobile, bringing  
the rider in a more forward position when sitting on the snowmobile, while the fourth Patent (the  
264) relates to a frame assembly to be used in the construction of snowmobiles.  
A.  
The 106 Patent  
[9]  
The 106 Patent is entitled “Snowmobile” (Motoneige) and was filed on December 23,  
1999. It lists Berthold Fecteau and Bruno Girouard as inventors. The Patent claims a Canadian  
priority date of December 23, 1998 (from patent application 2,256,944) and a United States  
priority date of November 26,1999 (from application 60/167, 614); however, during the course of  
this litigation, the parties came to an agreement to rely on the American priority date. In fact,  
nothing rides in the end on these various dates. The Patent was laid open to public inspection on  
   
Page: 9  
June 23, 2000. The 106 Patent was issued on April 14, 2007, and is in the name of Bombardier  
Recreational Products Inc.  
[10] The 106 Patent makes 80 claims, of which the following four claims remain asserted in the  
end in this case: 1, 7, 27, and 77. Prior to the claims, the Patent provides a description of the  
invention, referred to as the disclosure.  
[11] The Patent, as well as the 813 and 964 Patents could hardly have been clearer. The first  
sentence announces that (t)he present invention concerns the overall design and construction of a  
snowmobile.It is to be constructed such that the steering control position will be different from  
the one traditionally found on snowmobiles, where the rider was in an upright position located  
toward the rear of the vehicle. Being positioned further from the centre of gravity of the  
snowmobile, the driver would feel strongly the bumps over which the vehicle would be passing; an  
improved position would minimize the discomfort perceived as the vehicle would travel over  
uneven terrain.  
[12] The conventional design of a snowmobile would be changed with the result that the rider is  
repositioned. The 106 Patent would therefore seek to reconfigure the snowmobile such that the  
rider would have to assume a new position. The Patent addresses the position that the rider would  
have to take in the view of the new configuration that would force the rider to sit closer to the  
centre of gravity. Measurements involving the centers of gravity of the snowmobile, the  
snowmobile together with the rider (as a system) and the center of gravity of the rider are  
provided and included in the asserted claims.  
Page: 10  
[13] For instance, claims 1 and 7 are dealing with the distance between the center of gravity of  
the snowmobile and the center of the gravity of the snowmobile together with the rider. Claim 1  
speaks of a distance of 0 cm to 14 cm (inclusive) while Claim 7 situates the distance at 2 cm to 12  
cm (inclusive). Claim 27 is interested by the distance between the forward-most drive track axle  
and the rider’s center of gravity. Claim 77 deals with the angle calculated by having a line go  
through the center of gravity of the rider, and one going through the center of gravity of the system  
(center of gravity of the snowmobile with rider). These two lines will form an angle with  
horizontal that will be between 45º and 75º inclusive.  
[14] The claims are organized in the same manner. They are cascading from an independent  
claim that speaks of the snowmobile constructed and arranged such thatthe measurements and  
angles will result.  
(1)  
Disclosure  
[15] The invention described in the 106 Patent is said to be a snowmobile where, among other  
features, the steering control position, the seating position, and the position of the footrests are  
arranged in relation to one another so that the rider’s center of gravity is closer to the center of  
gravity of the vehicle than on a conventional snowmobile(106 Patent, page 1). The new  
configuration is said to improve over a conventional snowmobile by repositioning the rider to  
minimize the transfer of forces as the snowmobile passes over bumpy terrain.  
 
Page: 11  
[16] The Patent states that a person skilled in the art would understand that a snowmobile has  
one centre of gravity without the rider and (usually) a different centre of gravity with the rider  
included. The rider also has its own centre of gravity.  
[17] As already indicated, the Patent describes certain distances which can be measured on a  
snowmobile by comparing vertical lines passing through certain points on the snowmobile: a  
distance between a vertical line passing through the centre of gravity of the snowmobile without  
the rider and a vertical line passing through the centre of gravity of the snowmobile with the rider  
(referred to as distance a), a distance between a vertical line passing through the forward-most  
drive axle and a vertical line passing through the centre of gravity of the rider (referred to as  
distance z), a distance between a vertical line passing through the centre of gravity of the  
snowmobile with the rider and a vertical line passing through the centre of gravity of the rider  
(referred to as distance x”), and a distance ” between a vertical line passing through the centre of  
gravity of the snowmobile without the rider and a vertical line passing through the centre of  
gravity of the rider (referred to as distance y). For each distance, the Patent describes a range of  
preferred lengths in centimetres.  
[18] The Patent describes a series of angles which can be measured on a snowmobile by  
comparing a line passing through two points on the vehicle with a horizontal line: an angle from a  
line passing through the centre of gravity of the snowmobile without the rider and the center of  
gravity with the rider (referred to as angle “λ”), an angle from a line passing through the forward-  
most drive track axle and the centre of gravity of the rider (referred to as angle “π”), an angle from  
a line passing through the centre of gravity of the snowmobile without the rider and the center of  
Page: 12  
gravity of the rider (referred to as angle “ω”), and an angle from a line passing through the centre  
of gravity of the snowmobile with the rider and the centre of gravity of the rider (referred to as  
angle “θ”). For each angle, the Patent describes in a cascading way a range of preferred sizes in  
degrees.  
[19] The Patent describes certain components on a snowmobile that provides certain positions  
on the vehicle: “The steering device defines a steering position, the seat defines a seat position,  
and the footrests define a footrest position” (106 Patent at page 3). It then provides certain angles  
by comparing lines passing through these components: an angle referred to as “α” is formed from a  
line passing though the seat position and steering position and a line passing through the seat  
position and footrest position, an angle referred to as “β” is formed from a line passing though the  
footrest position and the steering position and a line passing through the footrest position and the  
seat position, and an angle referred to as “γ” is formed from a line passing through the footrest  
position and the steering position and a line passing through the steering position and the seat  
position. For each angle, the Patent describes a range of preferred sizes in degrees. The Patent also  
provides that the relationship for these angles satisfies α ≥ β ≥ γ and that it satisfies angle α ≈ 2.5γ.  
[20] The Patent also describes that an angle (referred to as angle “ϕ”) formed by comparing a  
line passing through the steering position and the seat position with the horizontal. The Patent  
provides preferred measurements for angle ϕ in degrees. The Patent also describes that the  
snowmobile has a steering shaft disposed over the vehicle’s engine at an angle referred to as ε;  
preferred measurements for angle ε are provided by the Patent. The Patent further describes an  
angle referred to as μ, formed by comparing a line passing through the steering position and the  
Page: 13  
seat position with a line passing through the seat position and the top of the windshield. Preferred  
measurements for μ are provided in the Patent.  
[21] The Patent teaches that the invention can feature a frame and a seat disposed on the frame,  
a windshield disposed forward of the steering device, a drive axle disposed on the frame, a steering  
device disposed on the frame, right and left footrests disposed below the seat. The Patent provides  
for a distance b, which is described as being between vertical lines passing through the steering  
device and the seat. The Patent describes preferred lengths for distance b in centimetres. It also  
provides for the snowmobile’s footrests to be disposed at angle Δ, for which preferred angles are  
provided in degrees.  
[22] The Patent describes 20 Figure drawings, which are included at the end of the Patent. They  
purport to illustrate both a conventional snowmobile as well as the snowmobile made according to  
the teachings of the Patent from side, top, and perspective views, calling out distances a, x, y, z, b,  
and angles λ, π, ω, θ, ϕ, Δ, μ, ε as well as the calculations of αmin and αmax, βmin and βmax, and γmin  
and γmax. It also provides two illustrations, Figures 19 and 20, which purport to show front and side  
views of the standard rider.  
[23] The figures provide illustrations as to the difference between the conventional snowmobile  
and the new configuration obtained through the positioning of the standard rider. In particular,  
figure 3 seeks to compare the old with the new configuration in one illustration.  
Page: 14  
[24] The Patent describes preferred embodiments for the invention; however, it notes that the  
construction of these elements is readily known to those skilled in the artand, as such, it only  
provides a description of those elements required for an understanding of the present invention”  
(106 Patent, page 7).  
[25] The Patent provides particular directions on how the average rideris placed on a  
conventional snowmobile:  
When seated, the average rider 26 will be positioned so that his  
hands grasp steering device 32 at steering position 36. Moreover,  
rider 26 will be seated so that the center of his torso 42 is above seat  
position 30. When seated in this manner, the rider’s feet 46  
naturally will be placed at footrest position 38. Positioned in this  
manner, the rider’s center of gravity 40 will be located just forward  
of the rider’s stomach, offset from the center of the rider’s torso 42.  
(The rider’s center of gravity 40 is offset forwardly from the center  
of the rider’s torso 42 because the rider’s arm and legs are disposed  
forward of the rider’s torso 42 when rider 26 is in the driving  
position.)  
(106 Patent, page 8)  
The Patent indicates that the result of the rider being in this position on the conventional  
snowmobile is a situation where rider 26 is seated in a relatively upright position toward the rear  
of the vehicle(106 Patent, page 8).  
[26] The Patent then provides directions on how the rider is to be placed on the invention  
snowmobile :  
When rider 126 is on snowmobile 110, the rider will be positioned  
on seat 128 so that he occupies seat position 130. Seat position 130  
is the point at which the weight of the rider 126 is exerted on the seat  
128 while seated in a biomechanically neutral position on the seat  
with its feet disposed on the footrest at the footrest position and its  
hands disposed on the steering device at the steering position, with  
Page: 15  
the snowmobile being steered straight and headed straight on flat  
terrain and being in running condition.  
(106 Patent, page 9)  
It notes that the person skilled in the art at whom the Patent is directed would understand that a  
biomechanically neutral position is one wherein each of the opposing muscles of the major  
supporting muscle group that maintain the rider in his position are in equilibrium(106 Patent,  
page 9). The Patent provides some guidance about the standard rider and how he is to be used to  
determine certain positions on the snowmobile:  
In cases of difficulty [determining the seating position], it may be  
determined by taking a 50-percentile United States human male  
(having a weight of 78 kilograms and dimensions show in FIGS. 19  
and 20), placing him on the snowmobile in the biomechanically  
neutral position shown in the Figures (i.e., that approximate the  
position of a rider a few seconds after starting the vehicle, heading  
straight ahead on flat terrain), and drawing a line from his shoulder  
through his hip. (For purposes of this discussion, a standard person  
is illustrated in FIGS. 19 and 20.) The intersection of that line with  
the seat may be considered to be the seat position 130.  
(106 Patent, pages 9-9a)  
As is the case with the seating position 130, the steering position 136  
may vary depending on the size and shape of the hands of the rider  
126. In cases of difficulty, the steering position 136 may be  
determined by placing the hands of the same 50-percentile rider  
described above, placing it on the steering device 132 in normal  
operating position. The steering position 136 will be the intersection  
of the center of the palm of the hands of the rider 126 and the  
steering device 132.  
(106 Patent, page 10)  
[27] The Patent declares that the invention has a number of advantages, namely that the new  
rider position permits the rider to more easily raise himself to a standing position from the seat  
using primarily the strength of his legs rather than by pulling himself up using the handlebars and  
that placing the rider’s centre of gravity closer to that of the vehicle helps to minimize the effect of  
Page: 16  
bumps and terrain on the rider. Further advantages are described, including that the windshield  
better protects the rider’s head from temperature and noise by being within the laminar air flow  
region, the rider position provides him with an improved view of the ground in front of the  
snowmobile, the rider is less likely to hit his knees with the steering device, and there is an  
improved ride for additional riders who are also closer to the vehicle’s centre of gravity.  
[28] Prior to setting out the claims, the Patent indicates that while it makes reference to  
preferred embodiments of the invention, the person skilled in the art at whom the Patent is directed  
will understand that various changes and substitutions may be made without departing from the  
invention or its teachings.  
(2)  
Claims  
[29] The Patent then sets out 80 claims, eight of which are independent claims and the  
remainder depend on at least one other claim. As previously noted, only four claims remain  
directly asserted in this proceeding for the 106 Patent: 1, 7, 27, and 77.  
(a)  
Claim 1  
[30] Claim 1 reads as follows  
A snowmobile, comprising:  
a frame including a tunnel;  
an engine disposed on the frame;  
a drive track disposed below the tunnel and being operatively  
connected to the engine for propulsion of the snowmobile;  
 
Page: 17  
a straddle seat disposed on the tunnel above the drive track and  
rearward of the engine, the seat being dimensioned to support a  
standard rider having dimensions and weight of a 50-percentile  
human male;  
two skis disposed on the frame;  
a steering device disposed on the frame forward of the seat, the  
steering device being operatively connected to the two skis for  
steering the snowmobile, the steering device having a steering  
position;  
a pair of footrests, one footrest being disposed below each side of  
the seat, each footrest being dimensioned and arranged with respect  
to the seat and the steering device to support one of the standard  
rider’s feet thereon, the footrests having a footrest position;  
the snowmobile constructed and arranged such that, when the  
standard rider is in a standard position defined as the standard rider  
straddling and being seated in a biomechanically neutral position on  
the seat with its feet disposed on the footrests on the footrest position  
and its hands disposed on the steering device on the steering with the  
snowmobile being steered straight on flat terrain and being in  
running condition and full of fuel, the snowmobile has a first center  
of gravity without the standard rider and a second center of gravity  
with the standard rider and a distance between a vertical line passing  
through the first center of gravity and a vertical line passing through  
the second centre of gravity is between 0 cm and 14 cm inclusive.  
(b)  
Claim 7  
[31] Claim 7 depends on Claim 1 but specifies that the distance between the centres of gravity  
be between 2 and 12 cm.  
(c)  
Claim 27  
[32] Claim 27 is a dependent claim, referring to the snowmobiles described in the un-asserted  
Claims 20 through 25. The independent claim on which Claim 27 is based is Claim 20, which is  
Page: 18  
substantially similar to Claim 1 but with the following changes. Claim 20 adds an element to the  
snowmobile, namely a forward-most drive track axle disposed on the frame.It also changes the  
final element of the snowmobile to require that the snowmobile be steered straight and heading  
straight on flat terrain” (as opposed to Claim 1’s requirement for “the snowmobile being steered  
straight on flat terrain). Finally, Claim 20 does not speak to the centre of gravity of the  
snowmobile but focuses on the centre of gravity of the standard rider:  
… the standard rider has a center of gravity and a distance between a  
vertical line passing through the forward-most drive track axle and a  
vertical line passing through the center of gravity of the standard  
rider is between 15 cm and 65 cm inclusive.  
[33] Claims 21 through 25 add the following element to the snowmobile described in Claim 20:  
… a longitudinal centerline and a seat position is defined on the seat  
with respect to the standard rider in the standard position, and the  
seat position is a point along the longitudinal centerline wherein a  
distance between a vertical line passing through the point and a  
vertical line passing through the steering position [is between 40 and  
90 cm, between 50 and 80 cm, between 60 and 80 cm, exactly 65  
cm, or exactly 70 cm].  
[34] To the snowmobiles described in Claims 20 through 25, the asserted Claim 27 specifies  
that the distance between the vertical line passing through the forward-most drive track axle and  
the vertical line passing through the center of gravity of the standard rider is between 35 cm and 55  
cm inclusive.”  
(d)  
Claim 77  
[35] The final asserted claim, Claim 77, is also a dependent claim, referring to the snowmobiles  
described in the un-asserted Claims 71 through 76. The independent claim on which Claim 77 is  
Page: 19  
based is Claim 71, which is also substantially similar to Claim 1 but with the following changes.  
Like Claim 27, the snowmobile must be steered straight and heading straight on flat terrain.The  
centres of gravity at issue in Claim 71 are:  
… the snowmobile has a center of gravity with the standard rider  
and the standard rider has a center of gravity and a line passing  
through the center of gravity of the snowmobile with the standard  
rider and the center of gravity of the standard rider forms an angle  
with horizontal that is between 35° and 84° inclusive.  
[36] Claims 72 through 76 add the same element to the snowmobile described in Claim 71 as do  
claims 21 to 25:  
… a longitudinal centerline and a seat position is defined on the seat  
with respect to the standard rider in the standard position, and the  
seat position is a point along the longitudinal centerline wherein a  
distance between a vertical line passing through the point and a  
vertical line passing through the steering position [is between 40 and  
90 cm, between 50 and 80 cm, between 60 and 80 cm, exactly 65  
cm, or exactly 70 cm].  
[37] To the snowmobiles described in Claims 71 through 76, the asserted Claim 77 specifies  
that the angle be between 45° and 75°.  
B.  
The 813 Patent  
[38] The 813 Patent is a divisional of the application that became the 106 Patent; accordingly, it  
shares the filing date, publication date, and priority date information with the 106 Patent, including  
the agreement to use the American priority date. The Patent, also entitled “Snowmobile”  
(Motoneige), lists Bruno Girouard and Berthold Fecteau as inventors. The Patent was issued on  
March 27, 2007. Bombardier Recreational Products Inc. is the listed owner of the Patent.  
 
Page: 20  
(1)  
Disclosure  
[39] The 813 Patent shares the same disclosure as provided in the 106 Patent, as set out above.  
(2)  
Claims  
[40] The Patent makes 75 claims, five of which are independent and the remainder depend on at  
least one other claim. Claims 37, 38, 48, and 73 remain directly asserted.  
(a)  
Claim 37  
[41] Claim 37 is a dependent claim, referring to Claims 1 through 27 and Claim 36. The  
independent claims Claim 37 relies on Claims 1, 9, 14, 19, and 27, all of which are the same  
except for a single element of the snowmobile described.  
[42] Claim 1 reads as follows  
A snowmobile, comprising:  
a frame including a tunnel;  
an engine disposed on the frame;  
a drive track disposed below and supported by the tunnel and  
operatively connected to the engine for propulsion of the  
snowmobile;  
two skis disposed on the frame, each via a front suspension;  
a straddle seat disposed on the tunnel above the drive track and  
rearward of the engine, the seat being dimensioned to support a  
standard rider having the dimensions and weight of a 50-percentile  
human male;  
   
Page: 21  
a pair of footrests supported by the frame to support the rider’s feet,  
the footrests having a footrest position; and  
a steering device disposed on the frame forward of the seat, the  
steering device being operatively connected to the two skis for  
steering the snowmobile, the steering device having a steering  
position;  
the snowmobile constructed and arranged such that when the  
standard rider is in a standard position defined as the standard rider  
straddling and being seated in a biomechanically neutral position on  
the seat with its feet disposed on the footrests on the footrest position  
and its hands disposed on the steering device on the steering position  
with the snowmobile being steered straight and headed straight on  
flat terrain and being in running condition, a seat position is defined  
on the seat with respect to the standard rider, and  
a line passing through the seat position and the steering position  
forms angle α with a line passing through the seat position and the  
footrest position,  
a line passing through the footrest position and the steering position  
forms angle β with the line passing through the footrest position and  
the seat position,  
the line passing through the footrest position and the steering  
position forms angle γ with the line passing through the steering  
position and the seat position, and  
angle α is between 63° and 152°, angle β is between 16° and 84°,  
and angle γ is between 11° and 42°.  
[43] Claims 2 through 8 depend on the snowmobile described in Claim 1. Claims 2 through 4  
provide alternate ranges in degrees for angles α, β, and γ. Claim 5 requires a distance between  
vertical lines passing through the steering and seat positions to be between 40 and 90 cm. Claim 6  
adds reference to a plurality of axles about which the drive track is disposed and requires that the  
steering position be forward of the forward-most axle. Claim 7 adds left and right sideboards and  
Page: 22  
provides that the footrests be the forward-most portions of the sideboards. Claim 8 further adds a  
pair of toeholds, positioned above the footrests.  
[44] The independent Claim 9 is the same as Claim 1 except that angles α, β, and γ are not  
described with angles in degrees, but instead with a requirement that they satisfy the relationship α  
≥ β ≥ γ. Claims 10 through 13 depend on the snowmobile described in Claim 9 and provide the  
same requirements for the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of  
axles with the steering position forward of the forward-most drive track axle, sideboards, and  
toeholds).  
[45] The independent Claim 14 is the same as Claim 1 except that angles α, β, and γ are not  
described with angles in degrees, but instead with a requirement that α ≈ γ. Again, Claims 15  
through 18 depend on the snowmobile described in Claim 9 and provide the same requirements for  
the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of axles with the steering  
position forward of the forward-most drive track axle, sideboards, and toeholds).  
[46] The independent Claim 19 is the same as Claim 1 except that angles α, β, and γ are not  
described. Rather the claim provides that “a line passing through the seat position and the steering  
position forms an angle ϕ with horizontal that is between 15° and 51°.” Claims 20 through 22  
provide alternate ranges in degrees for angle ϕ. Claims 23 through 26 provide the same  
requirements for the snowmobile as Claims 5 through 8 (distance of 40 to 90cm, plurality of axles  
with the steering position forward of the forward-most drive track axle, sideboards, and toeholds).  
Page: 23  
[47] The independent Claim 27 is the same as Claim 1 except that angles α, β, and γ are not  
described. Rather the claim provides that a distance between vertical lines passing through the  
steering position and the seat position is between 40 and 90 cm.”  
[48] Claim 36 depends on Claims 8, 13, 18, and 26, which are the claims adding toeholds to the  
snowmobile. Claim 36 provides that the “toeholds are over the feet of the standard rider when the  
standard rider is in the standard position.”  
[49] As previously stated, the asserted Claim 37 relies on any of Claims 1 through 27 and 36  
with additional requirements that the snowmobile is full of fuel, the snowmobile has a first center  
of gravity without the standard rider and a second center of gravity with the standard rider and a  
distance between a vertical line passing through the first center of gravity and a vertical line  
passing through the second center of gravity is between 0 cm and 14 cm inclusive.”  
(b)  
Claim 38  
[50] The asserted Claim 38 relies on Claim 37 and, as such, relies on any of Claims 1 through  
27 and 36. It requires the distance between the centres of gravity of the snowmobile with and  
without the standard rider to be between 2 and 12 cm.  
(c)  
Claim 48  
[51] The asserted Claim 48 relies on Claim 46. Claim 46 relies on any of Claims 1 through 27  
and 36 with the addition of a forward-most drive track axle disposed on the frame and a  
Page: 24  
requirement that a vertical line passing through that axle and a vertical line passing through the  
centre of gravity of a standard rider have a distance between them of between 15 and 65 cm.  
[52] Claim 48 narrows the distance between the vertical lines passing through the forward-most  
drive track axle and the standard rider’s centre of gravity to between 25 and 55 cm.  
(d)  
Claim 73  
[53] The asserted Claim 73 relies on Claim 72. Claim 72 relies on any of claims 1 through 27  
and 36 with the addition of requirements that the snowmobile be full of fuel and that a line  
passing through the center of gravity of the snowmobile with the standard rider and the center of  
gravity of the standard rider forms an angle with horizontal that is between 35° and 84° inclusive.”  
[54] Claim 73 narrows the angle formed by the line passing through the centres of gravity of the  
snowmobile and the standard rider with horizontal to between 45° and 75°.  
C.  
The 964 Patent  
[55] The 964 Patent is entitled “Snowmobile with Active Rider Positioning” (Motoneige à  
positionnement actif du conducteur). The patent application was filed on November 15, 2002, and  
laid open for publication on November 11, 2003. It does not claim priority from any other  
application. Berthold Fecteau, Peter Watson, and Bruno Girouard are the listed inventors. The 964  
Patent was issued on July 26, 2005. Bombardier Recreational Products Inc. is the listed owner of  
the Patent.  
 
Page: 25  
[56] The 964 Patent has 49 claims, of which 16 remain asserted: 1, 4, 6, 8, 13, 15, 16, 20, 24,  
26, 27, 35, 37, 40, 42, and 48. The Patent includes 7 figures that seek to illustrate the difference  
between the invention and the prior art, as well as providing the measurements of the standard  
rider used to configure the new snowmobile.  
(1)  
Disclosure  
[57] The invention in the 964 Patent, as with the other two Patents, is said to concern the overall  
design and construction of a snowmobile and more particularly the construction and arrangement  
of various components that determine the position of a rider on the snowmobile. This Patent will  
use the relative positioning of the knees, ankles and hips of a standard rider. Thus, when seated  
and holding the steering device as positioned by the new configuration, the knees will be in front  
of the ankles but below the hips. The Patent provides that such positioning will facilitate absorbing  
bumps and allows the rider to actively position on the snowmobile. When compared to the prior  
art, the ankles are presented as being in line with the knees and for the knees to be higher than the  
hips.  
[58] The Patent states that all dimensions are based on a standard rider which is defined as a  
50th-percentile United States human male who weighs 78 kilograms (174.8 lb.) and has the  
dimensions illustrated in FIGS. 6 and 7.The Patent indicates that it would be obvious to a person  
of ordinary skill in the art that Figures 6 and 7 show dimensions in centimeters with the middle  
value representing the 50th-percentile U.S. human male.There is said to be a “standard position”  
for the standard rider, in which the rider is seated on the seat, is holding the steering device with  
his hands, and has his feet on the footrest.This standard position is said to be shown in the  
 
Page: 26  
Figures accompanying the Patent and represent a position taken a few seconds after starting the  
vehicle, heading straight ahead on a flat terrain(964 Patent, page 1).  
[59] The Patent describes snowmobile components which may be present in one or more  
embodiments of the invention:  
a frame that includes a tunnel, an engine disposed on the frame, a  
drive track disposed below and supported by the tunnel and  
connected operatively to the engine for propulsion of the  
snowmobile, and two skis disposed on the frame. A straddle seat is  
disposed on the frame. The seat is dimensioned to support a  
standard rider in a standard position, the standard rider having the  
dimensions and weight of a 50th-percentile human male. A footrest  
is supported by the frame to support the rider’s feet. A steering  
device is disposed on the frame. The steering device is operatively  
connected to the two skis for steering the snowmobile. The footrest,  
straddle seat, and steering device are constructed and arranged such  
that when the standard rider is in the standard position, the hips are  
disposed above the knees.  
(964 Patent, page 2)  
[60] When the snowmobile is constructed according to certain embodiments, the Patent teaches  
preferred distances and relationships for points on the snowmobile and on the standard rider’s  
body when the rider is in the standard position. The Patent prefers embodiments where the hips are  
disposed above the knees, the hips are disposed behind the ankles, the hips are behind the steering  
device and the ankles are disposed behind the knees. But the Patent is also concerned with the  
positioning of the knees, hips and ankles relative to the steering position: the hips are behind the  
steering device, the knees are disposed below the steering position, the ankles are disposed behind  
the steering position and the hips are disposed below the steering position. Furthermore, some  
measurements are taken relative to the footrest: the steering position is disposed in front of the  
forward-most portion of the footrest and the footrest position is disposed below the ankle. Finally,  
Page: 27  
the seat position is disposed below the hips and the knee position is disposed in the same area as  
the knee at a narrowed portion of the seat. For these relationships, the Patent provides some  
preferred distances in centimetres. It indicates that the relative positions of the steering, footrest,  
seat, and knee positions can be determined by reference to the relative positions of the steering  
position and the standard rider’s hips, knees, and ankles.  
[61] The 7 Figure drawings illustrate a conventional snowmobile from a side view (said to be a  
model year 1999 Ski-Doo MXZ), the purported invention snowmobile from side and top views,  
the rider position from a side view, and a perspective view of the frame, calling out various  
components and positions. The Patent also provides two illustrations, Figures 6 and 7, which  
purport to show front and side views of the standard rider with measurements of various parts of  
that standard rider.  
[62] The Patent provides particular directions on how the average rider is placed on a  
conventional snowmobile. These directions are the same as those provided in the 106 and 813  
Patents, as set out above (except that the final sentence of the description is no longer enclosed in  
parentheses). The result of this position is again the same as described previously, namely a  
situation where rider 26 is seated in a relatively upright position toward the rear of the vehicle  
10.The Patent notes that a rider may move out of this position, but this position is used during  
normal relaxed riding(964 Patent, pages 6-7)  
Page: 28  
[63] The Patent provides particular directions on how the rider is placed on the snowmobile as  
there is a new configuration of the snowmobile (which are similar, but not identical, to those  
directions provided in the 106 and 813 Patents) :  
When rider 126 is on snowmobile 110, the rider will be positioned  
on seat 128 so that he occupies seat position 130. Seat position 130  
is the point at which the weight of the rider 126 is exerted on the seat  
128, and is generally disposed 9 cm below the hips 131 of the rider  
126. It will also be understood that seat 128 will be covered with an  
amount of foam or similar padding-type material, and that the  
amount of that foam will vary from seat to seat. When the rider 126  
sits upon the seat 128, his weight will cause the foam to compress  
and he will sink into the seat 128. Preferably, the seating position  
130 and hip 131 location is determined after this compression has  
occurred.  
(964 Patent, page 8)  
[64] The Patent provides further guidance for locating positions on the purported invention  
(again, this guidance is similar, but not identical to that provided in the 106 and 813 Patents):  
Steering device 132 is positioned at the forward end of snowmobile  
110 and above engine 115. As is the case with the seating position  
130, the steering position 136 may vary depending on the size and  
shape of the hands of the rider 126. In cases of difficulty, the  
steering position 136 may be determined by placing the hands of the  
standard rider described above on the steering device 132 in the  
standard position. The steering position 136 will be the intersection  
of the center of the palm of the hands of the rider 126 and the  
steering device 132.  
(964 Patent, page 8)  
… The rider’s feet 146 rest on footrests 134 in footrest position 138  
just behind the center of gravity 144 of the vehicle 110. The footrest  
position 138 is in the location of the arch of the foot of the rider 126  
when his feet are placed in the standard position on the vehicle.  
Under normal operating conditions, the rider’s feet 146 will rest on a  
forward portion of the sideboards/footrests 134. This foot  
positioning places the rider’s ankles 139, which are defined by the  
ankle joint, 9 cm above the footrest position 138.  
(964 Patent, page 9)  
Page: 29  
The rider’s ankle 139 and hip 131 positions determine the position  
of the rider’s knees 141, which are defined by the knee joints. …  
(964 Patent, page 9)  
As illustrated in FIG. 4, the rider’s knees 141 fit into a knee position  
142 on the snowmobile 110. The knee position 142 is defined by a  
narrowed forward portion of the seat 128 that is designed to  
accommodate the rider’s knees 131. As illustrated in FIG. 2, the  
knee position 142 is preferably disposed at the same vertical and  
longitudinal position on the snowmobile 110 as the rider’s knees  
141. The open space formed at the knee position 142 enables the  
rider 126 to actively position himself and more easily lean into turns  
because the knee position 142 allows the rider’s outside knee 141 to  
move farther into the turn.  
(964 Patent, pages 9-10)  
[65] The 964 Patent declares the purported invention to have several advantages, primarily that  
the rider can more easily raise himself from the seat using the strength of only his legs than on a  
conventional snowmobile. As such, the Patent states that the rider can maintain greater control  
over the snowmobile, experience less stress on the rider’s back, and achieve a more comfortable  
ride. The Patent is also said to improve on the conventional snowmobile by the fact that the rider’s  
centre of gravity is closer to the centre of gravity of the snowmobile. It calls out certain distances  
which can be measured relating to the centres of gravity: a distance between a vertical line passing  
through the vehicle’s centre of gravity and a vertical line passing through the rider’s centre of  
gravity (referred to as distance x), a distance between a vertical line passing through the  
forward-most drive track axle and a vertical line passing through the rider’s centre of gravity  
(referred to as distance z). Other advantages described by the Patent include that the windshield  
better protects the rider’s head from temperature and noise by being within the laminar air flow  
region, the rider position provides an improved view of the ground in front of the snowmobile, the  
rider is less likely to hit his knees with the steering device, and there is an improved ride for  
additional riders who are also closer to the vehicle’s centre of gravity.  
Page: 30  
[66] Finally, the Patent indicates that, while it refers to preferred embodiments of the invention,  
persons skilled in the art will understand that various changes and substitutions may be made  
without departing from the invention or its teachings.  
(2)  
Claims  
[67] The 964 Patent then sets out 49 claims, three of which are independent claims and the  
remainder depend on at least one other claim. As previously noted, 16 claims remain directly  
asserted in this proceeding: 1, 4, 6, 8, 13, 15, 16, 20, 24, 26, 27, 35, 37, 40, 42, and 48.  
(a)  
Claim 1  
[68] Claim 1 reads as follows  
A snowmobile, comprising:  
a frame that includes a tunnel;  
an engine disposed on the frame;  
a drive track disposed below and supported by the tunnel and  
connected operatively to the engine for propulsion of the  
snowmobile;  
two skis disposed on the frame;  
a steering device disposed on the frame, the steering device being  
operatively connected to the two skis for steering the snowmobile,  
the steering device having a steering position;  
a straddle seat disposed on the tunnel above the drive track and  
rearward of the engine, the seat being dimensioned to support a  
standard rider having the dimensions and weight of a 50-perentile  
human male, the seat having a seating position;  
a pair of footrests supported by the frame to support the rider’s feet,  
the footrests having a footrest position; and  
 
Page: 31  
the snowmobile constructed and arranged such that, when the  
standard rider is in a standard position defined as the standard rider  
straddling and being seated on the seat on the seating position with  
its feet disposed on the footrests on the footrest position and its  
hands disposed on the steering device on the steering position with  
the snowmobile being steered straight and heading straight on flat  
terrain and being in running condition and full of fuel, the hips of the  
standard rider are disposed above its knees.  
(b)  
Claim 4  
[69] Claim 4 depends on Claim 1, 2, and 3. The un-asserted Claims 2 and 3 specify horizontal  
distances for the rider’s hips to be disposed behind the steering position. Claim 4 further requires  
that the standard rider’s hips are disposed above its knees by a vertical distance of between 0 and  
20 cm when the rider is in the standard position.  
(c)  
Claim 6  
[70] Claim 6 depends on Claims 1 through 5, but further requires the standard rider’s hips to be  
disposed behind its ankles by a horizontal distance of between 5 and 40 cm when the rider is in the  
standard position.  
(d)  
Claim 8  
[71] Claim 8 is an independent claim. It is identical to Claim 1 except that it does not speak to  
the hips of the standard rider being disposed above its knees. Instead, Claim 8 requires that the  
ankles of the standard rider are disposed behind its knees.”  
Page: 32  
(e)  
Claim 13  
[72] Claim 13 depends on any of Claims 8, 9 and 10. The un-asserted Claims 9 and 10 specify  
horizontal distances for the rider’s ankles to be disposed behind its knees. Claim 13 further  
requires the standard rider’s knees to be disposed below the steering position by a vertical distance  
of at least 25 cm when the rider is in the standard position.  
(f)  
Claim 15  
[73] Claim 15 depends on any of Claims 8 through 12. The un-asserted Claims 11 and 12  
provide alternate minimum vertical distances for the standard rider’s knees to be disposed below  
the steering position than that in Claim 13. Claim 15 further requires the standard rider’s ankles to  
be disposed behind the steering position by a horizontal distance of between 5 and 50 cm when the  
rider is in the standard position.  
(g)  
Claim 16  
[74] Claim 16 depends on any of Claims 8 through 12. It further requires the standard rider’s  
ankles to be disposed behind the steering position by a horizontal distance of at least 15 cm when  
the rider is in the standard position.  
(h)  
Claim 20  
[75] Claim 20 is an independent claim. It describes a snowmobile which is identical to that  
claimed in Claim 1 for the first six listed elements; however, it describes the footrests of the  
Page: 33  
described snowmobile differently: “a pair of footrests supported by the frame to support the rider’s  
feet, the steering position being disposed forwardly of a forward most portion of the seat.There  
is no eighth element to the snowmobile of Claim 20 (unlike in the other independent claims, Claim  
1 and Claim 8).  
(i)  
Claim 24  
[76] Claim 24 depends on any of Claims 1 to 7. The un-asserted Claim 7 provides an alternate  
maximum horizontal distance for the standard rider’s hips to be disposed behind its ankles than  
that in Claim 6. Claim 24 further requires that rider’s knees to be disposed below the steering  
position by a vertical distance of at least 25 cm when the rider is in the standard position.  
(j)  
Claim 26  
[77] Claim 26 depends on any of Claims 1 to 7 and 22 to 24. The un-asserted Claims 22 and 23  
provide an alternate minimum vertical distance for the standard rider’s knees to be disposed below  
the steering position than that in Claim 24. Claim 26 further requires the standard rider’s ankles to  
be disposed behind the steering position by a horizontal distance of between 5 and 50cm when the  
rider is in the standard position.  
(k)  
Claim 27  
[78] Claim 27 depends on any of Claims 1 to 7 and 22 to 24. It further requires the standard  
rider’s ankles to be disposed behind the steering position by at least 15 cm.  
Page: 34  
(l)  
Claim 35  
[79] Claim 35 depends on any of Claims 1 to 7 and 22 to 34. The un-asserted Claim 28 provides  
an alternate minimum distance for the standard rider’s ankles to be disposed behind the steering  
position than that in Claim 27. The un-asserted Claims 29 and 30 provide vertical distances for the  
standard rider’s hips to be disposed below the steering position when the rider is in a standard  
position. The un-asserted Claims 31 and 32 provide vertical distances for the standard rider’s  
knees to be disposed above its ankle when the rider is in the standard position. The un-asserted  
Claims 33 and 34 provide horizontal distances for the standard rider’s knees to be disposed behind  
the steering position when the rider is in the standard position.  
[80] Claim 35 requires the steering position to be disposed forwardly of a forward-most portion  
of the footrest.  
(m)  
Claim 37  
[81] Claim 37 depends on any of Claims 1 to 7 and 8 to 19. The un-asserted Claim 14 requires  
the standard rider’s ankles to be disposed behind the steering position when the rider is in the  
standard position. The un-asserted Claim 17 relies on any of Claims 8 to 12 and requires the  
standard rider’s ankles to be disposed behind the steering position by at least 25 cm. The un-  
asserted Claims 18 and 19 relies on any of Claims 8 to 17 and provide vertical distances for the  
standard rider’s hips to be disposed below the steering position when the rider is in the standard  
position.  
Page: 35  
[82] Claim 37 requires the hips of the standard rider to be disposed above its knees when the  
rider is in the standard position.  
(n)  
Claim 40  
[83] Claim 40 relies on any of Claims 8 to 19 and 37 to 39. The un-asserted Claims 38 and 39  
provide horizontal distances for the standard rider’s hips to be disposed behind the steering  
position when the rider is in the standard position. Claim 40 requires the standard rider’s hips to be  
disposed above its knees by a vertical distance of between 0 and 20 cm when the rider is in the  
standard position.  
(o)  
Claim 42  
[84] Claim 42 relies on any of Claims 8 to 18 and 37 to 41. The un-asserted Claim 41 provides  
an alternate vertical distance for the standard rider’s hips to be disposed above its knees when in  
the standard position than that in Claim 40. Claim 42 requires the standard rider’s hips to be  
disposed behind its ankles by a horizontal distance of between 5 and 40 cm when the rider is in a  
standard position.  
(p)  
Claim 48  
[85] Claim 48 relies on any of Claims 8 to 19 and 37 to 47. The un-asserted Claim 43 provides  
an alternate horizontal distance for the standard rider’s hips to be disposed behind its ankles than  
that in Claim 42. The un-asserted Claims 44 and 45 provide vertical distances for the standard  
rider’s knees to be disposed above its ankles when the rider is in the standard position. The un-  
Page: 36  
asserted Claims 46 and 47 provide horizontal distances for the standard rider’s knees to be  
disposed behind the steering position when the rider is in the standard position.  
[86] Claim 48 requires the steering position to be disposed forwardly of a forward-most portion  
of the footrest.  
[87] I note that, although the independent claims of the three Patents speak a snowmobile  
constructed and arranged to fit measurements and angles, there is no instruction to be found in any  
of the Patents as to how the construction of the snowmobile is to be altered. Similarly, no  
indication is provided as to how the various components are to be reorganized.  
D.  
The 264 Patent  
[88] The 264 Patent is of a different ilk than the other 3 Patents. Nevertheless, the Patent states  
that the construction of a snowmobile according to the alleged invention permits the forward  
position. It is entitled “Frame Construction for a Vehicle” (Cadre support pour véhicule). The  
application for the Patent was filed on June 12, 2001, and claims a priority date of October 4,  
2000, from a United States patent application (60/237,384). The Patent has a publication date of  
April 4, 2002, and it was issued on February 14, 2006. The Patent lists four inventors: Berthold  
Fecteau, Jerome Wubbolts, Anne-Marie Dion, and Bruno Girouard. The Patent’s listed owner is  
Bombardier Recreational Products Inc.  
[89] The 264 Patent makes 43 claims, of which 25 are asserted: 1 to 3, 5 to 10, 12 to 18, 20 to  
26, 41, and 43.  
 
Page: 37  
(1)  
Disclosure  
[90] The invention contained in the Patent is said to relate to the following:  
The present invention relates to the construction of vehicles such as  
snowmobiles, all terrain vehicles (“ATVs”), and other similar  
vehicles. More specifically, the present invention concerns the  
construction of a frame and related structural elements that enhance  
the ruggedness and ability of such vehicles to operate across a wide  
variety of different terrains and under a wide variety of conditions.  
In addition, the present invention concerns the design and  
construction of a frame for snowmobiles, ATVs, and related vehicles  
that facilitate the construction of such vehicles with an improved  
rider positioning.  
(264 Patent, page 1)  
This Patent is concerned with the actual construction of the vehicle, its structural elements.  
[91] The Patent describes the differences in designs for snowmobiles, ATVs and related  
vehicles. It notes that they experience different stresses and strains on their frames and  
suspensions, are of different shape and size, and have different centers of gravity. Despite these  
differences, the Patent states that it has recently been recognized that recreational vehicles may  
incorporate many structural elements that are the same using similar design approaches.  
[92] The object of the purported invention contained in the 264 Patent is to provide a series of  
frame assemblies. The first is described as a frame assembly with a tunnel, an engine cradle  
disposed forward of the tunnel and connected to the tunnel, and a sub-frame disposed forward of  
the engine cradle and connected to the engine cradle (para 0011). This assembly is said to further  
include a forward support assembly extending upwardly from the sub-frame, an upper column  
extending upwardly from the engine cradle to connect with the forward support assembly, and a  
 
Page: 38  
rear brace assembly extending upwardly from the tunnel to connect with the forward support  
assembly and the upper column.  
[93] A second frame assembly is presented where the forward support assembly, the upper  
column, and the rear brace assembly connect at an apex above the upper column. A third frame  
assembly is described as a frame assembly where the forward support assembly and rear brace  
assembly form a pyramidal construction. A fourth frame assembly further includes a steering  
bracket connected at the apex to support a steering shaft which may include the ability to position  
the steering shaft in more than one position. A fifth frame assembly is described to include an  
engine disposed in the engine cradle, an endless track operatively connected to the engine and  
disposed beneath the tunnel, and a pair of skis operatively connected for steering. A sixth frame  
assembly is described with an engine disposed in the engine cradle, a rear wheel operatively  
connective to the engine and disposed beneath the tunnel for propulsion, and two front wheels  
operatively connected for steering.  
[94] A seventh frame assembly is presented that includes a tunnel and an engine cradle. It also  
has a rear brace assembly attached to the tunnel between its front and rear ends which extends  
upwardly from the tunnel. The assembly also includes a forward support assembly attached to the  
rear brace assembly which extends forwardly and downwardly from the rear brace assembly. The  
Patent also describes a variation of this assembly where the rear brace and forward support  
assemblies have left and right legs. The legs are said to connect to one another at an apex to form a  
pyramidal structure above the tunnel and engine cradle.  
Page: 39  
[95] The Patent describes 35 Figure drawings. They illustrate exterior views of a prior art  
snowmobile and a snowmobile said to incorporate the invention, as well as an overlay to  
demonstrate a difference in rider positioning. A prior art frame assembly is shown that is described  
as a 2000 model year Ski-Doo Mach Z. Multiple figures present embodiments of the invention  
frame assemblies from different perspectives, including figures that call out components of the  
assemblies and their relative positioning within the assemblies and to other components of the  
vehicles. Figures show the invention incorporated into snowmobiles as well as into wheeled  
vehicles. The final figure consists of a graph that is said to compare the vertical displacement rate  
of the invention with prior art snowmobile frames from Bombardier and Arctic Cat.  
[96] The 264 Patent describes the prior art construction of a frame assembly, with particular  
reference to Figure 4. The major components of the prior art assembly in a snowmobile are a  
tunnel and an engine cradle, with the cradle positioned in front of the tunnel to receive the motor.  
The Patent states that in order to provide an improved rider position with the rider closer to the  
centre of gravity of the snowmobile, the handlebars needed to move forward. Moving the  
handlebars forward in turn required a redesign of the vehicle’s frame assembly, resulting in the  
described invention. The invention frame assembly is now said to include the tunnel, engine  
cradle, and over-arching frame elements, as shown in Figure 5.  
[97] Contrary to the other three Patents-in-suit, the Patent provides guidance on how the frame  
assemblies are to be constructed in different embodiments of the invention:  
Figure 6 illustrates the individual elements of rear frame assembly  
84 in greater detail. Rear frame assembly 84 includes an upper  
column 118, which is an inverted U-shaped structural element. If  
necessary, upper column 118 may be reinforced with a cross-  
Page: 40  
member 120, but this is not needed to practice the present invention.  
A left brace 122 and a right brace 124 are connected to a bracket  
126 above upper column 118. A bushing or bearing (or other similar  
element) 128 is attached to bracket 126 and accepts steering shaft  
114 therethrough. It also secures steering shaft 114 to rear frame  
assembly 84. Left and right braces 122, 124 include left and right  
brackets 130, 132 at their lower portions. Left and right brackets  
130, 132 secure left and right braces 122, 124 to tunnel 86 of  
snowmobile 22.  
(264 Patent, pages 14-15)  
Figure 7 illustrates a forward support assembly 134 (also called front  
triangle 134), which connects to bracket 126 and extends forwardly  
of bracket 126. Forward support assembly 134 includes a bracket  
136 at its rear end that connects to bracket 126 of frame assembly 84  
(preferably bolted). Forward support assembly 134 also has left and  
right braces 138, 140 that extend forwardly and downwardly from  
bracket 136 and are connected thereto preferably by welding. Left  
and right braces 138, 140 are connected at their forward ends by a  
cross-member 142, which includes a plurality of holes 144 therein to  
lighten the weight thereof. Left and right connecting brackets 145,  
146 are connected to cross-member 142. The left and right  
connecting brackets 145, 146 connect, in turn, to front suspension  
110.  
(264 Patent, pages 15-16)  
Figures 13 and 14 illustrate a combination of a variation of frame  
assembly 190 connected to tunnel 86. Frame assembly 190 includes  
upper column 118 as illustrated in Figures 8-10. However, frame  
assembly 190 differs somewhat from frame assembly 84. For  
example, left and right braces 194, 196 are shaped so that they  
extend outwardly from the positions defined by left and right braces  
122, 124. As illustrated, left and right braces 194, 196 include  
elbows 198, 200. A cross-brace 202 optionally may be placed  
between left and right braces 194, 196 to add structural rigidity to  
frame assembly 190. As with frame assembly 84, a bracket 126 is  
provided at apex 204 where left and right braces 194, 196 meet one  
another. Forward support assembly 134 is the same as depicted in  
Figure 7. A front engine cradle wall is also show in Figure 13.  
(264 Patent, pages 17-18)  
[98] The Patent indicates that the person skilled in the art would understand that these two  
frame embodiments are interchangeableand may be further altered based on the requirements of  
Page: 41  
the particular vehicle design (264 Patent, page 21). It also states that embodiments of the invention  
relating to wheeled vehicles “[f]or the most part […] are the same as those for snowmobile 22,  
except for those elements required to attach wheel 334 to vehicle 332(264 Patent, page 22).  
Figures 26 and 27 depict frame assembly 191 where the invention has been incorporated into  
wheeled vehicles.  
[99] The 264 Patent presents the results that are achieved through the use of the embodiments of  
the invention:  
Frame assembly 84, 190, 191 of the present invention uniquely  
distributes the weight loaded onto the vehicle, whether it is  
snowmobile 22 or one of wheeled vehicles 332, 356. Each of the  
main components of the frame assembly 84, 190, 191 forms a  
triangular or pyramidal configuration. All of the bars of the frame  
assembly 84, 190, 191 work only in tension and compression,  
without bending. Therefore, each bar of frame assembly 84, 190,  
191 intersects at a common point, the bracket 126 (in the non-  
variable steering geometry) or variable geometry steering bracket  
374. With this pyramidal shape, the present invention creates a very  
stable geometry.  
(264 Patent, pages 25-26)  
[100] The Patent states that the use of the frame assembly enhances the torsional and structural  
rigidity of the vehicle as well as reducing its bending moment from front to rear. These  
improvements are said to improve the vehicle’s handling. The use of the frame assembly and  
resulting increased rigidity are also said to advantage the vehicle in that the frame can be made  
lighter and stronger than prior art frame assemblies.  
[101] Similar to the 106, 813, and 964 Patents, the 264 Patent indicates that the use of example  
embodiments should not be understood as limiting the invention and that changes may be made  
Page: 42  
without departing from the scope and spirit of the invention within the purview of the claims  
following.  
(2)  
Claims  
[102] The 264 Patent has 43 claims, three of which are independent claims and the remainder  
depend on at least one other claim. As previously noted, 25 claims remain asserted in this  
proceeding: 1 to 3, 5 to 10, 12 to 18, 20 to 26, 41, and 43.  
(a)  
Claim 1  
[103] Claim 1 reads as follows  
A snowmobile, comprising:  
a frame including a tunnel and an engine cradle forward of the  
tunnel;  
an engine mounted in the engine cradle;  
a drive track disposed below and supported by the tunnel and  
connected operatively to the engine for propulsion of the  
snowmobile;  
left and right skis disposed on the frame;  
a straddle seat disposed on the tunnel above the drive track and  
rearward of the engine;  
a pair of footrests supported by the frame;  
a steering column movably connected to the frame without a  
headpipe and operatively connected to the two skis;  
a handlebar connected to the steering column;  
a pyramidal brace assembly connected to the frame, the assembly  
including:  
 
Page: 43  
left and right rear legs extending forwardly and upwardly from the  
tunnel, each of the left and right rear legs having a front end and a  
rear end, the rear ends of the rear legs being spaced further from  
each other than the front ends of the rear legs, and left and right front  
legs extending rearwardly and upwardly from the frame forward of  
the tunnel, each of the left and right front legs having a front end and  
rear end, the front ends of the front legs being spaced further from  
each other than the rear ends of the front legs.  
(b)  
Claim 2  
[104] Claim 2 depends on Claim 1, but further requires a cross-member interconnecting the front  
legs of the pyramidal brace assembly.  
(c)  
Claim 3  
[105] Claim 3 depends on Claim 1, but further requires the legs of the pyramidal brace assembly  
to form an apex not forward of the engine.  
(d)  
Claim 5  
[106] Claim 5 depends on Claim 1, but further requires the rear ends of the front legs and front  
ends of the rear legs of the pyramidal brace assembly to be interconnected.  
(e)  
Claim 6  
[107] Claim 6 depends on Claim 1, but further requires the rear ends of the front legs and front  
ends of the rear legs of the pyramidal brace assembly to be interconnected and to form an apex not  
forward of the engine.  
Page: 44  
(f)  
Claim 7  
[108] Claim 7 depends on Claim 6, but further requires an upper column extending upwardly  
from the frame.  
(g)  
Claim 8  
[109] Claim 8 depends on Claim 7, but further requires the upper column to form the apex with  
the front ends of the rear legs and the rear ends of the front legs of the pyramidal brace assembly.  
(h)  
Claims 9 to 10 and 12 to 15  
[110] Claims 9, 10, 12, 13, 14, and 15 depend on Claims 2, 3, 5, 6, 7 and 8, respectively. Each  
claim requires a sub-frame, left and right suspension arms, and left and right skis. Each claim  
provides that the sub-frame is located forward of the engine cradle and specifies that the  
suspension arms be pivotally connected to the sides of the sub-frame. Each ski is disposed on the  
frame via a connection to a suspension arm.  
(i)  
Claim 16  
[111] Claim 16 is an independent claim. It is identical to Claim 1 except for the following  
changes. Claim 16 additionally requires a sub-frame forward of the engine cradle and left and right  
suspension arms pivotally connected to the sides of the sub-frame. While Claim 1 speaks of the  
skis as disposed on the frame, Claim 16 requires them to be connected to the left and right  
Page: 45  
suspension arms. Claim 16 also differs from Claim 1 in that it does not require the absence of a  
headpipe.  
(j)  
Claim 17  
[112] Claim 17 depends on Claim 16, but further requires a cross-member interconnecting the  
front legs of the pyramidal brace assembly. This is the same addition to the snowmobile as  
provided by Claim 2.  
(k)  
Claim 18  
[113] Claim 18 depends on Claim 16, but further requires the legs of the pyramidal brace  
assembly to form an apex not forward of the engine. This is the same addition to the snowmobile  
as provided by Claim 3.  
(l)  
Claim 20  
[114] Claim 20 depends on Claim 16, but further requires the rear ends of the front legs and front  
ends of the rear legs of the pyramidal brace assembly to be interconnected. This is the same  
addition to the snowmobile as provided by Claim 5.  
Page: 46  
(m)  
Claim 21  
[115] Claim 21 depends on Claim 16, but further requires the rear ends of the front legs and front  
ends of the rear legs of the pyramidal brace assembly to be interconnected and to form an apex not  
forward of the engine. This is the same addition to the snowmobile as provided by Claim 6.  
(n)  
Claim 22  
[116] Claim 22 depends on Claim 21, but further requires an upper column extending upwardly  
from the frame. This is the same addition to the snowmobile as provided by Claim 7.  
(o)  
Claim 23  
[117] Claim 23 depends on Claim 22, but further requires the upper column to form the apex  
with the front ends of the rear legs and the rear ends of the front legs of the pyramidal brace  
assembly. This is the same addition to the snowmobile as provided in Claim 8.  
(p)  
Claim 24  
[118] Claim 24 is an independent claim. It is identical to Claim 1 except for the following  
changes. It does not require the absence of a headpipe and there is no pyramidal brace assembly  
described. Instead, Claim 24 calls for a rear brace assembly which includes left and right rear legs  
extending forwardly and upwardly from the tunnel, each of the left and right rear legs having a  
front end and a rear end, the rear ends of the rear legs being spaced further from each other than  
the front ends of the rear legs(264 Patent, page 33).  
Page: 47  
(q)  
Claim 25  
[119] Claim 25 depends on Claim 24, but further requires a front support assembly which  
includes left and right front legs extending rearwardly and upwardly from the frame forward of  
the tunnel, each of the left and right front legs having a front end and a rear end, the front legs  
being spaced further from each other than the rear ends of the front legs(264 Patent, page 33).  
(r)  
Claim 26  
[120] Claim 26 depends on Claim 25, but further requires the front support assembly and rear  
brace assembly to form a pyramidal structure.  
(s)  
Claim 41  
[121] Claim 41 depends on Claim 26, but further requires a cross-member interconnecting the  
legs of the front support assembly.  
(t)  
Claim 43  
[122] Claim 43 depends on Claim 26, but further requires the steering column to extend through  
a V-shaped structure formed by the legs of the front support assembly.  
Page: 48  
III.  
The Evidence / Witnesses  
[123] The parties in this case presented the evidence of a number of lay witnesses. The Plaintiff  
produced 10 witnesses, together with 4 expert witnesses. Moreover, two more expert witnesses  
testified on remedies as the trial was not bifurcated. The Defendants had 5 witnesses, together with  
4 experts on infringement and validity of the Patents, and 2 experts on damages. A summary of the  
evidence of witnesses will assist in understanding the issues raised. I will refer to the evidence of  
the experts in due course when reviewing issues on which they offered expert evidence.  
A.  
BRP’s witnesses  
(1)  
Jean-Yves LeBlanc  
[124] Mr. Leblanc retired from BRP in January 2012 and currently works as a consultant retained  
to provide expertise following disasters. He graduated with a Bachelor’s degree in Applied  
Science and Mechanical Engineering from the École polytechnique de l’Université de Montréal in  
1973. He is a member of the Ordre des ingénieurs du Québec. He joined the Recreational Products  
Division in 1992 and he retired in 2012.  
[125] Mr. Leblanc testified about how snowmobile development was organized in Bombardier  
when he was director of engineering. He first encountered the project that became the REV  
(Radical Evolution Vehicle) in the winter of 1997 when he visited the Advanced Concept Group  
workshop and saw the buck mockupin the corner of the workshop, which did not appear to him  
to be an official project. Mr. Leblanc testified that the rider position used by the REV was different  
     
Page: 49  
than the traditional snowmobile position (which he described as being spread out, having footrests  
running towards the front of the machine at an angle, and having the handlebar, seat, and feet  
positions similar to sitting back in a chair; he demonstrated this position in court). Mr. Leblanc  
testified that he had reservations about the REV position (the willingness of the market to accept a  
new position, the holding of the legs in a bent position for long periods of time could be tiring, the  
amount of mass needing to be supported by the skis, the reduction of polar resistance could lead to  
loss of control of the machine and ‘louvoiement’). Mr. Leblanc also testified about the changes to  
the frame of the REV to help rigidify the structure by using a pyramidal structure; forces received  
by the front skis are transmitted through the ‘membrures’ comprising the pyramid and to the rear,  
other side of the snowmobile (ski avant droit monte sur une bosse, le châssis subit une impulsion  
verticale qui est transmise à travers cette membrure qui monte vers le centre et la force redescend  
sur la membrure arrière du côté opposé[TRANSLATION] “when the ski -- the front ski, right ski  
goes over a bump, the frame gets a vertical impulsion which is transmitted through this strut going  
towards the centre and the force goes down towards the strut on the other side.”)  
[126] In March or April of 1999, a two-day Product Orientation Committee [POC] of BRP was  
held to assess the REV prototypes from the Advanced Concept Group: a first day of meetings in  
Valcourt and then testing on paths at a BRP centre in Cabano in the Témiscouata region of  
Quebec. The POC decided to go ahead with the REV project and a mandate was given to Mr.  
Leblanc and the engineering department to take the project to production on a limited basis using  
soft-tooling (estimate of 25,000 over 3 years and limited to the snowcross/performance/sport  
market).  
Page: 50  
(2)  
José Boisjoli  
[127] Mr. Boisjoli is the president and CEO of BRP. He graduated from l’Université de  
Sherbrooke in 1981 with a degree in Mechanical Engineering. In 1989, he joined Bombardier Inc.  
When BRP became independent of Bombardier Inc. in 2003, he was appointed President and CEO  
of BRP. BRP sells 6 product ranges in 105 countries. It employs 7,100 people in 26 countries  
(with about 3,000 in Valcourt). Since May 2013, the company has been a public company.  
[128] Mr. Boisjoli became aware of the REV at a POC meeting in the summer of 1997 when he  
saw the shape of a new snowmobile could take in the form of the “Buck”. It is only in April or  
May 1998 that a functional vehicle was ready for trials. The test had to be conducted in the  
Chibougamau region of Quebec where there was still some snow. A second prototype was tested  
in January or February 1999. The changed seating position and the pyramidal structure were  
validated; the decision was made to develop the REV.  
[129] Mr. Boisjoli testified about 4 problems that needed to be resolved in the development stage  
(protection against the wind, ‘louvoiement, poorer performance in deep snow, and higher  
manufacturing costs compared to the traditional snowmobile). In the spring 2000, the company  
had gained enough confidence with the REV and the ability to make it work for all segments that  
they decided to go with hard tooling which allows for more units to be manufactured.  
[130] By winter 2000-2001, they were 2 years from fully launching the product and work began  
on how to introduce the product to the clients. Mr. Boisjoli testified that riders needed a period of  
 
Page: 51  
adaptation to get used to the REV riding position and they invited 3 dealers, who had signed  
confidentiality agreements, to try the prototype.  
[131] The new configuration REV was introduced through racing in November 2001. It appears  
that it won the majority of the races it entered its first two years. In January 2002, two months  
before the introduction of the vehicles with the dealers, Bombardier invited media representatives  
to view the machine, under confidentiality agreements. The company also tested the REV with  
dealers in Lac-à-l’Eau-Claire in St-Alexis-des-Monts.  
[132] Mr. Boisjoli testified that Bombardier produced the vehicles in 2002 for the 2003 Model  
Year which sold to the public from December 2002; it was a success from the beginning of sales.  
In 2003, the cross-country model was the only model produced; in 2004 the mountain model was  
introduced; in 2005 the touring model was introduced and, in 2007, the utility model was  
introduced. Since the introduction of the REV, Mr. Boisjoli testified that BRP won [REDACTED]  
points of market share (they went from [REDACTED] percent in North America; [REDACTED]  
percent in Scandinavia, and [REDACTED] percent of imports in Russia). In Canada, excluding the  
current market year, BRP has sold approximately [REDACTED] REV snowmobiles.  
[133] The decision to proceed with the action against Arctic Cat was taken by him in 2011,  
following discussions with the investment and risk committee. He testified that Arctic Cat began  
infringing in the spring 2008 in small volumes. In 2008 and 2009, the snowmobile industry  
suffered greatly during the economic crisis; BRP lost [REDACTED] of business in six months.  
Mr. Boisjoli testified that by summer 2010, the company’s position was recovering. In the spring  
Page: 52  
2011, Arctic Cat came out with a line of snowmobiles that, in Mr. Boisjoli’s opinion, represented a  
“complete copy” of the REV, justifying a decision to go to litigation in the fall of 2011. Mr.  
Boisjoli also testified about other litigation between BRP and Arctic Cat as well as the  
relationships BRP has with Yamaha and Polaris.  
[134] On cross-examinations, questions were asked about the decision to litigate this matter and  
not to prosecute cases where other manufacturers could be alleged to violate BRP’s Patents. I was  
struck in particular by questions on whether BRP was trying to take Arctic Cat out of the market  
(no) and whether it would take a licence for its Patents at the right price (yes) and the settlement  
negotiations in this litigation.  
(3)  
Bruno Girouard  
[135] Bruno Girouard is one of the named inventors on every one of the Patents-in-suit. He  
testified about the development of the alleged inventions.  
[136] Mr. Girouard is an engineer with expertise in vehicle dynamics with the Advanced Concept  
Group for snowmobiles at BRP, a position he has held since 2006. He also held this position at  
Bombardier between August 1996 and August 2001, including when the REV was invented. In  
1995, he graduated with a degree in Mechanical Engineering from the École de technologie  
supérieure de Montréal. Mr. Girouard is a member of the Ordre des ingénieurs du Québec.  
[137] Mr. Girouard testified about the snowmobile platforms at Bombardier that existed prior to  
the REV, including the F2000 from the beginning of the 1990s with a 3 cylinder engine, a  
 
Page: 53  
subsequent platform, the S2000 with a 2 cylinder engine, the CK3 which appeared in 1998 and the  
ZX which was a 2 cylinder light model to replace the S2000. Mr. Girouard explained certain  
scientific/engineering concepts in his testimony:  
Suspension geometry (the points of attachment between different items which are  
defined by the points of rotation such as where the skis attach to a snowmobile)  
Inertia (resistance to change in movement)  
Linear inertia (the acceleration of a mass in a straight line)  
Polar or rotational inertia (as a mass turns on an axis, its acceleration can also be  
measured; the further a mass is from the axis the more resistance there is, and the  
closer or more centralized it is the less resistance there will be)  
[138] Mr. Girouard testified about the course of events leading to the development of the REV,  
including his first experience riding a snowmobile at the Advanced Concept Group (he found the  
traditional position to amplify the bumpy terrain and made it difficult to stand). Following a  
conversation with Mr. Fecteau, the other inventor identified in the four Patents-in-suit, they  
decided to make a Computer assisted drawing (CAD) of a snowmobile with an advanced rider  
position.  
[139] Following more experimentation riding a conventional snowmobile, Mr. Girouard came up  
with the idea of including the mass of the rider in determining the centre of gravity and to develop  
a “system” representing both the rider and the snowmobile. By moving the rider from the rear of  
the vehicle to the centre of the “system” the polar inertia is reduced. In such a system, there are  
three centres of gravity (of the vehicle, of the rider, and of the vehicle and rider combined) which  
have a linear relationship between them. When a rider on such a system stands up, he detaches  
from the vehicle and it can move freely beneath. Mr. Girouard and Mr. Fecteau discussed ways to  
Page: 54  
decrease the problem of ‘louvoiement’ or darting (where the snowmobile will jump between tracks  
that it is going over), which they suspected could be improved by rigidifying the frame and  
reducing torsion, or the twisting of the frame.  
[140] In the summer of 1997, he and Mr. Fecteau kept a prototype from a different model of  
snowmobile that the Advanced Concept Group was developing and modified it to fit their ideas;  
that became the non-functional “Buck”. They noticed that as they moved the rider forward, the  
engine could be moved backward to maintain the desired centre of gravity.  
[141] In August 1997, the Advanced Concept Group was informed that the REV was to become  
the new official project with a mandate to have the vehicle running in the winter.  
[142] Mr. Girouard testified that they measured the Buck using key points of the feet, seat, and  
hands in relation to the drive axle of the vehicle. They used Mr. Girouard, Mr. Fecteau as well as  
another worker because they felt that they were representative of the 50th-percentile male which  
was the target rider (the vehicle also had to be capable of being ridden by persons between the 5th-  
percentile female and the 95th-percentile male).  
[143] They then built a first prototype according to these measurements and the desired design  
structure (i.e., handlebars in front of motor, using a pyramidal frame although they had to use less  
than perfectly straight ‘membrures’ to accommodate other elements, but including a crossbar to  
reinforce the design, an upper column, placement of an engine in the engine cradle, a shortened  
tunnel, a fuel tank under the seat rather than in front of it). Mr. Girouard also testified to some  
Page: 55  
reluctance on the part of other engineers and officials at Bombardier to accept his concepts  
regarding the polar inertia and the centralization of the masses, as well as a willingness of the  
market to adapt to the vehicle.  
[144] Mr. Girouard testified that by late January, early February of 1998, the REV was ready for  
a first trial in the snow in a private area on BRP’s grounds outside the workshop. As a result of  
their initial tests, they learned of a need to redesign certain elements (the knee placement was not  
comfortable and the handlebars were too far forward). Owing to poor snow conditions, they also  
tested the vehicle on other paths closed to the public; Mr. Girouard testified that one time they met  
a person, but the prototype was between two other vehicles. When they aligned the drive axle of  
the prototype with the drive axle of a traditional snowmobile, Mr. Girouard showed a photo where  
the rider on the REV was approximately 30 cm forward of the other rider.  
[145] The team calculated the centres of gravity of the vehicle and system by raising the vehicle  
on three scales and tipping it to make the calculations. They made modifications to the vehicle  
following their testing and found it had improved results (more efficient in bumps, more  
comfortable, more maneuverable) and also consulted an ergonomist (Peter Watson). They took  
inertia measurements again and compared them to measurements they made from other vehicles  
(snowmobiles, ATV, motorcycles) both with and without riders; for the prototype, the difference  
in inertias with and without rider was small. Mr. Girouard presented this data to a POC in the  
spring of 1998 to show that, even though the rider was placed higher on the vehicle, it was no  
more likely to tip over than a conventional snowmobile.  
Page: 56  
[146] The Product Orientation Committee, having considered the first prototype, requested  
additional prototypes and further development to assess whether it could be used in multiple  
market segments or just in snowcross. He testified that in the next prototype, they reduced the  
height and modified the place for the knees to better suit rider movement when turning, and they  
made alterations to the rear portion of the pyramidal structure. The third prototype, from January  
1999, was modified to be able to represent the touring (with a longer tunnel and capable for longer  
distances) and the mountain (with a much more aggressive drive track to propel the snowmobile  
through the snow) market segments. The team tested the third prototype in Colorado in January  
1999 with a BRP associate. The fourth prototype, from March 1999, incorporated the previous  
improvements and was equipped with a 440 cc engine (the type of engine used in snowcross  
competitions at that time).  
[147] Mr. Girouard testified that in March 1999, a POC comprised of senior management tested  
the four prototypes at Cabano. Despite some continuing reservations on the part of some BRP  
officials, the REV project was transferred from the Advanced Concept Group to the engineering  
department. At that time, it was anticipated that the REV would only be launched in the sport  
segment. He testified that Bombardier invited a Finnish race, Janne Tapio, to test the 4th prototype  
(painted black for confidentiality) in Chibougamau in April of 1999, where it was determined that  
the REV was approximately 3 seconds faster on a race course than a traditional snowmobile.  
[148] Mr. Girouard continued to follow the development of the REV once it was with the  
engineering department until his departure from Bombardier in 2001. He testified about the  
Page: 57  
continued evolution of the REV frame, engine cradle (the final product cradle is closed on the right  
side and open on the left to permit access to the motor), seat shape, and fuel tank placement.  
[149] Mr. Girouard testified that the angles (foot, hip, and hands) on a REV snowmobile have a  
particular configuration and relationship to one another that is unlike the prior art in snowmobiles  
(“Alors le plus grand des angles est celui qui est situé entre la ligne qui passe du guidon à l’assise  
et la deuxième ligne qui passe de l’assise au pied. Alors cet angle-là est plus grand que les deux  
autres. Ce qui n’était pas le cas antérieurement.” [TRANSLATION] “The biggest angle is the one  
between the line that goes from the handlebar to the base, and the second one that goes from the  
base to the feet. So that is greater than the two others, which wasn’t the case previously.”)  
[150] For the filing of the patent application, the team took measurements on the Buck, the first  
prototype and the fourth prototype. The measurements in the Patents match the first prototype, as  
the fourth had been transferred to the engineering department and was no longer available for the  
Advanced Concept Group to measure. Mr. Girouard testified that the only records of these  
measurements are those in the Patents. The 964 Patent, however, was drafted after Mr. Girouard’s  
departure from Bombardier and he was not involved in that process.  
[151] The cross-examination focused in large part on the measurements that were taken and used.  
Thus, the use of Messrs. Girouard and Fecteau, together with a co-worker as representing  
individuals near the 50th-percentile was raised. It was confirmed that the witness did not use a  
Hybrid III Mannequin, while the CAD modelling used the measurements of the 50th-percentile.  
Page: 58  
[152] Another focus of the cross-examination was about the “natural position” of a rider creating  
the new configuration, which does not appear in the Patents. Mr. Girouard contended that a rider  
forward position on traditional snowmobiles would only be temporary as it is not the natural  
position. The rider would go back to sitting towards the back. In fact, phrases like  
“biomechanically neutral” and “standard rider” were not in initial drafts of the Patents and  
appeared later.  
[153] To questions about what Mr. Girouard considered the invention to be at the time of filing,  
he stated that the invention is about a snowmobile architecture with several benefits including the  
ability to rise using one’s legs and which brings the rider’s centre of gravity closer to that of the  
system, allowing for less motion on bumpy terrain; it also is a pyramidal frame with torsional  
rigidity and improved stability allowing the rider to maintain a forward position in all conditions.  
[154] Mr. Girouard did not conduct a prior art search before the patent application and his  
knowledge of prior art snowmobiles was certainly not universal, but he was confident what he  
worked on was new (“je peux pas vous affirmer que j’avais l’information de toutes les motoneiges  
qui avaient existées dans le monde depuis le début. Toutefois, avec la quantité d’information y  
avait aucun indice qui nous laissait croire que ça avait déjà existé.[TRANSLATION] “So I cannot  
say that I had the information about all the snowmobiles that ever came into being since the new  
world. However, with the quantum of information nothing led us to believe that it had ever  
existed.”)  
Page: 59  
[155] In re-examination, two issues were addressed. First, Mr. Girouard testified that the  
Dreyfussis a well-known database used in product design. The anthropometric database consists  
of the measures taken of the range of body sizes in a population, arranging the data by percentiles  
of various populations. The DMU is a “digital mockup” that is built into the CAD system; the  
DMU used to develop the snowmobile represented the 50th-percentile male. While the data come  
from different sources, statistically speaking they are representative of the population; the  
differences between the DMU and the Dreyfussare statistically insignificant.  
[156] As questions were asked in cross-examination on testing conducted in Colorado in January  
1999, Mr. Girouard was also asked to clarify what was the type of land in Colorado where the tests  
were carried out. He testified that his impression was that it was on Crown lands, and while not  
private, there was a lot of snow and conditions were difficult. He did not recall seeing any other  
snowmobiles when carrying out the tests.  
(4)  
Berthold Fecteau  
[157] Mr. Fecteau is the co-inventor listed in each Patent-in-suit. He is a designer and technician  
(technicien concepteur). He graduated in 1974 from high school, specializing in technical  
drawing. He began working at Bombardier in 1974 and stayed for two-and-a-half years. Following  
a decade working elsewhere, he returned to Bombardier in 1987. In 1993, he joined the Advanced  
Concept Group where he worked until 2002, when he transferred to the Competition Department.  
[158] Mr. Fecteau testified about his personal experience with snowmobiles, including a 1971  
traditional snowmobile that he and his father modified to provide more control (they put the  
 
Page: 60  
engine in the front, made the seat more comfortable, and broadened the skis) and another one that  
he modified on his own to make it more race-like. He testified about how he rode on snowmobiles  
to improve their speed (riding up on the fuel tank with the handlebar pressed into his body) and  
about the difficulties in maintaining such a position.  
[159] While working on the drawings for the ZX platform (a conventional snowmobile) in 1995-  
1996, he made a drawing that had the driver in the centre of the vehicle to see what such a machine  
would look like (not an official project). At the time he made the drawing, he did not share it with  
anyone at Bombardier.  
[160] Mr. Girouard and Mr. Fecteau took a CK3 model of snowmobile and rearranged it to form  
a mockup, which included watercraft components (seat, hood); the tunnel was shortened by a foot,  
but the drive track remained the same length as a conventional snowmobile. As a hobby, Mr.  
Fecteau also worked in his basement on ways to improve the rigidity of the frame using  
triangulation, but encountered obstacles to installing tubing (e.g., motor in the way, muffler in the  
way).  
[161] Following the decision to make the REV project official in the fall of 1997, Mr. Fecteau  
designed vehicle layouts to determine placement of the components in order to permit the  
manufacturing of the parts. Following the manufacture of the parts, Mr. Fecteau instructed the  
mechanics about the assembly of the prototype.  
Page: 61  
[162] Difficulties were encountered in developing the REV: the machine required a new frame, a  
new front suspension, a new steering column, new footrests, new oil reservoirs, new air boxes,  
new gas tank, and new exhaust system. The prototype kept the engine, the drive track, the  
handlebars (although they were repositioned), and the rear suspension from a conventional  
snowmobile. Gaining acceptance from many engineers at Bombardier was difficult.  
[163] The first test ride on the first prototype from the Advanced Concept Group occurred in the  
winter of 1998 on Bombardier grounds near the workshop. Owing to the poor winter conditions of  
1998, they took the snowmobile on another trail that was usable in the forest. In the spring of  
1998, the team completed the second prototype. The third and fourth prototypes were made at the  
same time, one of which was adapted to be a mountain or touring vehicle and the other was made  
for snowcross with a competition engine. Mr. Fecteau testified that the four prototypes were tested  
by senior management at Bombardier Center in Cabano where the company owns private trails.  
[164] Mr. Fecteau’s contribution in the drafting of the Patents was limited.  
[165] A significant portion of the cross-examination was dedicated to the measurements of the  
50th-percentile. It was established that he was not familiar with Dreyfuss, or for that matter, the  
measurements found in figures 19 and 20 of the 106 Patent and the 813 Patent. The cross-  
examination even went into a comparison, on the basis of a photograph of the design team, of the  
three persons’ measurements who were used in the early development of the new configuration in  
order to show the difference between the three.  
Page: 62  
[166] During the cross-examination, it was discussed what appears to be a small machine  
operating on snow that is referred to as a SnoScoot. In re-examination, Mr. Fecteau explained  
further why he did not consider the SnoScoot as a snowmobile: it is very small and it is not  
allowed on trails, it goes approximately 20 km per hour, the riders do not appear to be comfortable  
and the measurements of the riders in the promotional pictures are unknown.  
(5)  
Jérôme Wubbolts  
[167] Mr. Wubbolts testified about the 264 Patent for which he is an inventor with Messrs.  
Girouard and Fecteau, as well as Ms. Anne-Marie Dion.  
[168] Mr. Wubbolts is a technical service manager in the Centre de technologies avancées at  
BRP (and a partnership with the University of Sherbrooke), where he is responsible for  
prototyping, assembly, fabrication, and testing of prototypes. He graduated from McGill  
University in 1989 with a degree in Mechanical Engineering and is a member of the Quebec Order  
of Engineers. Mr. Wubbolts joined Bombardier in 1995 as a project engineer in the Ski-Doo  
Engineering Department.  
[169] Mr. Wubbolts testified that he worked on the CK3 platform and the ZX platform on the  
chassis development. He worked with Mr. Fecteau on the CK chassis and met Mr. Girouard during  
work on the ZX platform. He first learned of the REV in the spring of 1997 when he visited the  
Advance Concept Group workshop and saw the mockup they had built. He was impressed with the  
design for bringing the rider forward and centralizing the masses.  
 
Page: 63  
[170] In the fall of 1997, Mr. Fecteau and Mr. Girouard invited Mr. Wubbolts to discuss the  
assembly of the components given his expertise with the assembly line and manufacturing  
techniques. He was impressed by the advantages involved with the pyramidal frame which  
“increases the beam”: the increased height greatly absorbs and stiffens the structure and it transfers  
the load from the front to the rear on the opposite side with more torsional resistance. He testified  
that he had never seen such a structure on a snowmobile.  
[171] Mr. Wubbolts first drove the REV in April 1999 during the testing at Chibougamau. Riding  
it was “amazing” and it absorbed bumps very well; it also turned and changed direction very  
quickly. Mr. Wubbolts testified that these tests were “strictly confidential” and they drove the  
REV at nighttime and on specially created trails.  
[172] As a named inventor in the 264 Patent (the pyramidal frame), he was responsible for  
modifying the frame and making it more producible. He and a CAD designer, Anne-Marie Dion,  
designed the pyramidal frame to have two factory positions for the steering handle axis. They also  
changed the metal structure to an aluminum extrusion instead (figure 28 of the Patent for good  
view). They also split the left side and right side tunnels (which were then fastened together using  
the radiator) and opened up the left-side of the engine cradle to facilitate assembly of the engine.  
[173] Mr. Wubbolts testified that in September 1999, he performed tests on the chassis including  
a torsional test to measure the loads on the front of the snowmobile and how much was deflected  
by the rigidity of the frame (a load is applied to the skis and the upward movement of the chassis is  
measured). The also did tests on the ZX chassis to compare the REV results: the REV required  
Page: 64  
roughly 6.25 times more load to get the same movement and is, therefore, much more rigid  
torsionally. An Arctic Cat snowmobile frame was also measured for comparative purposes. Figure  
30 of the Patent provides a graphical representation of the loads that were measured.  
[174] The cross-examination focused largely on the testing that was conducted of the chassis. In  
re-examination, the witness was able to address in more details how the testing was done. About  
the torsion and the flexion/bending and how the REV chassis was fixed on the table for the testing,  
Mr. Wubbolts testified that the drive axle is mounted to a base plate on the table and two other  
mounting points on either side of the tunnel are attached toward the table. He testified that the  
same mounting mechanism was used for testing the Arctic Cat chassis as well as the ZX chassis.  
(6)  
Peter Watson  
[175] Mr. Watson is a consulting ergonomist and is the owner/founder of a consulting company  
called Human Works Incorporated, based in Thunder Bay. The company provides a full range of  
ergonomic services, including office, industrial, and design ergonomics. He completed a Bachelor  
of Science in Zoology at the University of Manitoba in 1979 and an Honours Bachelor of Science  
in Human Kinetics at the University of Guelph in 1982. He also has a Master’s of Science in  
Ergonomics from the Loughborough University of Technology (England), earned in 1993. For his  
Master’s degree, he conducted an ergonomic evaluation of the locomotive used in the English  
Channel Tunnel between the United Kingdom and France.  
[176] Mr. Watson testified about the field of ergonomics, providing illustrative examples to  
explain what ergonomists do: improving designs to make products safer or more efficient. He also  
 
Page: 65  
testified about anthropometry: the study of “people, their different sizes, shapes and ranges based  
on age, gender, and race.” He explained that an ergonomist would use data collected to optimize  
equipment, furniture, clothing, etc. for particular ranges of people. Mr. Watson testified that  
generally they will buy access to larger population data or, on a smaller scale, collect the data  
personally.  
[177] Mr. Watson testified that he has experience using Computer Assisted Drawing software  
incorporating persons of particular percentiles. He testified that the 50th-percentile is the largest  
user group and is also the median. A percentile is determined when a survey is taken and the full  
range sets out people from the smallest to the largest; with a 50th-percentile, half of the populations  
is smaller and half is larger. The 5th and 95th percentiles are also usually used as range limits  
because beyond those percentiles it is very difficult to accommodate without being cost-  
prohibitive.  
[178] He described biomechanics as “the position that you need to be in to actually use the  
snowmobile. And it’s basically is this a good position, a safe position and a comfortable position  
or is it a bad position that can put you at risk of some kind of injury or it’s very uncomfortable”  
and “it’s the way people move to accomplish a task.” He described five driving tasks of a  
snowmobile: accelerating, decelerating in a straight line, straight line speed, and turning left or  
turning right.  
[179] In April 1998, Mr. Watson was asked to conduct testing on what was called the Café Racer  
project in comparison to the MXZ 670 Ski-Doo. He rode the snowmobiles near the Bombardier  
Page: 66  
research and development building at Valcourt. During the transportation to and from the testing,  
the Café Racer prototype was covered. With the Café Racer, the hips were above the knee, the  
ankle was slightly behind the knee, and the feet were in a different position. Mr. Watson testified  
that in the Café Racer, the rider was primarily using the legs to manage bumps with the handlebars  
just to steer rather than to manage bumps using the upper body. Mr. Watson characterized the Café  
Racer as a “substantial improvement” over the models he had studied in 1994.  
[180] In March 2000, he reviewed the second prototype in a report for BRP’s Denis Lapointe. He  
compared the Café Racer REV prototype to the P1 REV prototype following tests at Cabano.  
While the rider positioning was similar, they were slightly different (joint angles are slightly  
different).  
[181] In the 964 Patent, Mr. Watson is listed as an inventor (the hip above the knee patent). He  
testified that he discussed with Mr. Cutler, who was instrumental in drafting the Patent, certain  
aspects of the design for information to be filed (the variances in the numbers, the 50th-percentile  
male and the importance of the hips above the knees). He also had discussions with Mr. Cutler  
regarding the wording of some aspects of the 106 Patent. Mr. Watson testified that he (and Mr.  
Cutler) met with an examiner from the Canadian Patent Office regarding the 106 Patent about the  
wording of “neutral biomechanic position” or “biomechanically neutral position” (this is wording  
used by Mr. Watson based on his experience and educational background as an ergonomist).  
[182] On cross-examination, the witness asserted that an individual who would fit within the  
50th-percentile may actually have limbs that are not at the 50th-percentile for that particular limb. It  
Page: 67  
is rather the combination that produced the 50th-percentile. For instance, the witness indicated that  
he is at the 40th-percentile for his upper body but is still at around the 50th-percentile for the whole  
body. This witness expressed the view that the Dreyfussdata is outdated compared to those  
compiled by the U.S. Military. That prompted a short re-examination during which Mr. Watson  
established that the difference in the data would be small and would be insignificant given the kind  
of work that was done with respect to the new configuration of the snowmobiles.  
(7)  
Steward Strickland  
[183] Mr. Strickland is an intellectual property engineer with BRP, a position that he has held  
since June 2000. He has a Bachelor’s degree in Mechanical Engineering that he obtained from  
McGill University in 2000. He is a member of the Order of Engineers of Quebec.  
[184] Mr. Strickland testified about his role as an intellectual property engineer for BRP; he  
serves as a liaison between the BRP engineers and the outside law firm handling the company’s  
patents and more generally intellectual property issues. He is also responsible for reviewing  
competitor patents to ensure that products made by the company do not infringe. Generally a  
patent application would be drafted for the US and then the same patent would be filed in Canada,  
unless alterations were required to suit Canadian patent law. Mr. Strickland testified that he first  
heard of the REV project soon after he started at Bombardier. He testified that Mr. Jonathan  
Cutler, his boss at the time, showed him a REV prototype and explained the seating position and  
the pyramidal frame.  
 
Page: 68  
[185] He “occasionally” had involvement with the 964 Patent, but the 106, 813, and 264 Patents  
had been filed prior to his arrival with the company. He testified that in 2006, BRP conducted a  
Preliminary Ergonomic Study on three competitor vehicles to determine whether or not those  
vehicles fell within claims in a pending US application. An engineer was responsible for  
conducting the measurements (including centre of gravity measurements) for him following  
certain criteria set by Mr. Strickland (vehicle full of fuel, particular steering, footrest, seat  
positions, and suspension static). They used Mr. Fecteau as a 50th-percentile male rider since he  
looked “pretty close” to the standard; Mr. Fecteau was placed in a “standard rider position”  
according to what the engineers understood that position to mean. The measurements were taken  
using a Computerized Measuring Machine (CMM), while other measurements were taken from a  
CAD drawing. They measured a 2006 Polaris Fusion 600 HO, a 2006 Yamaha Apex, and a 2006  
Arctic Cat Crossfire. The report concluded that some of the measurements indicated that claims  
would have been infringed, but not all of the claims.  
[186] He was asked in 2008 to do similar measurements in relation to the Canadian patent claims  
from Patents 106, 813 and 964 (measurements relative to patents 345 and 795, which are not  
asserted in the litigation proceedings, were also conducted). They measured seven vehicles in  
2008. Mr. Strickland also testified about correspondence he had with a company called PMG  
Technologies. For the 2008 testing, Mr. Strickland wanted to use a dummy representing the 50th-  
percentile human male and he contacted the company about the feasibility of acquiring one for use  
on the snowmobile (a Hybrid III dummy). He rented a dummy and provided it to the R&D centre  
to do the measurements; he testified that the dummy was placed on the vehicle the same way that  
Mr. Fecteau had been seated and the measurement protocol was the same. Mr. Strickland testified  
Page: 69  
that an intern carried out the measurements in 2008. He testified that he specifically required  
measurements about whether the hips were above the knees. The vehicles measured include a 2008  
Arctic Cat Racing model, a 2008 Arctic Cat TZ1 LXR, a 2007 Arctic Cat Jaguar Z1 model,  
[REDACTED]. Based on the measurements, Mr. Strickland determined whether there was  
infringement of the REV Patents; charts were produced to reflect the results of the testing  
conducted (P-21, Tabs 4 and 5).  
[187] The cross-examination established that Mr. Strickland does not have education concerning  
patent law, including his knowledge of text books. Although Mr. Strickland received some training  
in patent drafting, he does not possess any expertise in the law proper.  
[188] Two other areas covered during cross-examination deserve mentioning. First, although the  
witness would conduct some prior art search, he would consult with other BRP engineers about  
prior art. Second, the cross-examination established that Mr. Strickland helped somewhat in the  
preparation of what became the 964 Patent. Mr. Strickland confirmed that he provided the  
drawing, without the numbers on it, that was to represent the prior art snowmobile, that is a BRP  
snowmobile before the changes allegedly taught by the 964 Patent are implemented. That figure 1  
of the “964” Patent was then compared to figure 1 of the “106” Patent, which is also presented as  
prior art representing a BRP snowmobile before the changes taught by the Patent are implemented.  
On their face, the drawings are different: the positions of the hips, of the ankles, of the knees and  
of the arms are different from one figure to the other. It is as if figure 1 of 964 depicts the rider  
sitting on the seat close to the front of the snowmobile.  
Page: 70  
[189] In re-examination, an attempt was made at explaining the difference between the two. It  
seems that there existed different platforms from the MXZ platform in 1999 (one is an MXZ  
snowmobile on the ZX chassis and the other is an MXZ on the S-2000 chassis), thus accounting  
for the (significant) difference. That may be, but a simple examination of the two figures would  
tend to reveal that the two riders are seated in different spots, one being clearly seated towards the  
back of the seat. That would ostensibly change the position of the ankles, knees, hips, arms, as  
well as the angle of the back of the rider in reference to the seat position.  
(8)  
Jonathan Cutler  
[190] Mr. Cutler is a patent lawyer with degrees in civil law and common law. He obtained an  
engineering degree from McGill University in 1991. He is a member of the Quebec,  
Massachusetts, and New York bars, and is a registered Canadian patent agent and registered US  
patent attorney. He is a member of the Quebec Order of Engineers. In September of 1999, Mr.  
Cutler joined Bombardier as legal counsel dealing with intellectual property issues in the  
recreational products group. As he volunteered in his testimony, he was by himself as there was no  
IP department and he had never seen a snowmobile before starting work at BRP (transcripts,  
February 11, 2015, P.190). In fact, he had been a patent agent for one year only before he joined  
BRP; the 106 Patent was the first patent he prosecuted for BRP.  
[191] Mr. Cutler testified about his involvement with the application that resulted in the 106 and  
813 Patents. Not only did Me Cutler have an extremely limited knowledge of snowmobiles, but he  
was under time pressure from the moment he joined BRP in September 1999. Since an application  
had already been filed in December 1998, he knew at that time that the one year deadline they had  
 
Page: 71  
to “sort of augment the application or beef it up or claim internal priority” was close. He testified  
that he was advised to continue the patent application. He engaged outside counsel from a US firm  
who was as much of a neophyte when it comes to snowmobiles, to assist with the application  
process (Jeff Karceski). He and Mr. Karceski met with Mr. Girouard to have the invention  
explained to them. Mr. Cutler and Mr. Karceski then considered how to claim the snowmobile in  
patent form (“it seemed to us that we should claim the snowmobile in terms of its structure and  
arrangement so that the rider, you know, is, in this case, positioned in a certain way to achieve the  
result that he wanted to achieve.” (transcripts, February 11, 2015, at p. 196). Thus, the decision to  
draft the disclosure and the claims of Patents 106 and 813 was made between October 1999 and  
the filing date of December 23, 1999, by lawyers who had not even driven a snowmobile before.  
[192] Mr. Cutler testified that, as they began drafting a new application, they did not have  
measurements or reference points. Eventually, they decided to standardize the rider; Mr. Cutler  
testified that he met someone from the design department who provided him with a Dreyfuss”  
book. The last page of the provisional application (P-6) shows the Dreyfussdiagram he  
received. He provided the drawing to Mr. Girouard and decided to standardize the invention at a  
50th-percentile male; following this, Mr. Girouard provided numbers and representative drawings  
for use in the Patent on November 24, 1999. The Court is struck by how much improvisation there  
was in the drafting of the application, between October 1999 and December 1999. Neither counsel  
drafting the patent application has experience, they are instructed by one of the inventors, Mr.  
Bruno Girouard, who is also inexperienced. Mr. Cutler explains:  
So I give this back to Bruno. I say, Bruno, here’s your scan.  
Right? We’ve come up with a way in words that we think will  
describe your invention. Let’s standardize at the 50th percentile male.  
Can you please -- and this is where the numbers come from.  
Page: 72  
Bruno goes back and takes these numbers and crunches. I  
mean, I didn’t -- I wasn’t watching what he was doing, and he comes  
back to us and that’s where the numbers of the patent application  
come from, because they were numbers that Bruno derived from  
using this particular standard.  
COUNSEL: Did Mr. Girouard tell you how he derived those  
numbers, what he measured, how he measured them?  
MR. CUTLER: No.  
COUNSEL: No.  
MR. CUTLER: He didn’t.  
So what he did was he drew a number of -- so if you go back  
a few pages, right.  
(transcripts, February 11, 2015, p. 203-204)  
[193] As he put it at page 206, Mr. Girouard did all the math himself(transcripts, February 12,  
2015, at p. 147).  
[194] Mr. Cutler testified about exhibit P-6, the provisional application filed November 26, 1999,  
under US law. A provisional application provides “the right to have a small filing fee and a filing  
date but it’s not examined.” He testified that, since inventiveness in a patent application is  
measured with respect to a filing date, a US provisional application is of benefit, especially as US  
law privileged US-filed applications at the relevant time. After P-6 was filed, it was circulated to  
Mr. Girouard and Mr. Fecteau, and some other BRP officials. The application that eventually  
became the 106 Patent was then filed in Canada on December 23, 1999, with a priority date from  
an earlier filed application (P-5).  
Page: 73  
[195] Mr. Cutler testified about the prosecution history for the 106 Patent which lasted many  
years. The prosecution started close to four years after the filing of December 23, 1999. On August  
8, 2003, he sent a letter to the Patent Office requesting examination of the application. At this  
time, the corresponding American application was undergoing examination in that country and  
BRP had chosen not to start the Canadian process in the meantime. They voluntarily amended the  
application at that time based on certain feedback from the American examiner (for concerns they  
were claiming a human being, they substituted in the language about standard rider and a