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  
description of the standard rider). They also provided the Canadian Patent Office with an  
Information Disclosure Statement about the prior art they were aware of in anticipation of a  
request for information (including the Yamaha SnoScoot). Mr. Cutler also testified about the  
requisitions from the Canadian examiner (P-24, Tab 4). The examiner made three rejections of the  
application: novelty based on a patent application called Stephenson, obviousness by combining  
the Stephenson with Yasui applications (Yasui relates to the SnoScoot), and a general obviousness  
issue with the general common knowledge in the prior art (patent applications are referred to using  
the name of the inventor, e.g. Stephenson or Yasui).  
[196] In response to the requisition, Mr. Cutler testified that the application was then separated  
into divisional applications according to the inventions that the examiner had identified (Group A  
resulted in the 106 application; Group B to the 813 application; Group D and Group C are not  
relevant to this case). BRP responded to the requisition (P-24, Tab 6). BRP restructured the claims  
to only apply to the Group A claims and argued that the indefinite characterization of the claims  
was an error, as well as provided information of other relevant art. In particular, they argued that  
Page: 74  
Yasui does not teach that a tunnel is desirable and therefore should not be combined with the  
Stephenson patent (a snowmobile designed to float).  
[197] The patent application was allowed. Following the allowance of the patent, Mr. Cutler tried  
to amend the application with an (Rule 32) amendment to bring it in line with the US application,  
by removing references to toeholds. Mr. Cutler testified that the examiner disallowed this  
amendment request because it removed an element from the claim. In response, BRP decided to  
withdraw the final fee it had paid and have the application go abandoned with an ability to  
reinstate it within one year (they did within 13 days). The reinstatement then allowed the patent  
application to be re-examined without the toeholds (P-24, Tab 13).  
[198] Mr. Cutler testified that, on re-examination, the examiner came to believe that the  
application covered two inventions and had concerns about the standard rider and standard  
position being indefinite. Mr. Cutler decided to seek a meeting with the examiner. At a meeting  
held in February 2006 with the patent examiner, BRP brought ergonomist Peter Watson, together  
with several snowmobiles (the REV and prior art machines). Mr. Watson suggested during the  
meeting that when they were discussing a standard position, they were talking about a  
biomechanically neutral position. The examiner suggested that if the biomechanically neutral  
positionlanguage were inserted, he would find the application acceptable. They subsequently  
amended the language to biomechanically neutral position. (P-24, Tab 18).  
Page: 75  
[199] Mr. Cutler testified briefly about the 813 Patent as being a divisional patent of the 106  
application; it related to the claims characterized as Group B. He testified that “at a very high  
level, they took the same course of prosecution as did the earlier patent application, its parent.”  
[200] Mr. Cutler testified also about the prosecution history of the 964 Patent (P-27). The  
application which led to the 964 Patent (P-27) was filed on November 15, 2002. The patent  
examiner raised a novelty issue with the Yasui patent (the SnoScoot) and his understanding of the  
teaching of Yasui; he also complained of the use of trademarks not being identified as such in the  
application and of the quality of the drawings submitted (P-27, Tab 3). BRP responded (P-24, Tab  
4). They changed the drawing sheets, amended the claims to better define the invention, and  
identified the trademarks; they also explained why Yasui did not anticipate or render the claims  
not novel (they focused on the tunnel which is not a feature of Yasui which instead teaches a  
tubular construction).  
[201] The examiner then issued a second requisition where he rejected the claims for obviousness  
by combining Yasui with a secondary reference, Irvine; he also again complained about the quality  
of the drawings. BRP again responded (P-27, Tab 7). They replaced the drawing sheets and argued  
that Yasui specifically taught against tunnels and advocated the removal of the tunnel, so it could  
not be combined to render the claims obvious; they also disputed that the rider in Yasui was the  
50th-percentile male. The application as amended was allowed (P-24, Tab 8).  
[202] Mr. Cutler testified about the prosecution history of the 264 Patent (P-29). He testified that,  
while the application claimed a “frame comprising”, the Patent issued claimed “a snowmobile  
Page: 76  
comprising.” This change was due to the frame assembly only being suited to snowmobiles and  
not, as initially considered by Mr. Girouard and Mr. Fecteau, a wheeled vehicle as well;  
accordingly, they narrowed the claims for the 264.  
[203] Mr. Cutler also testified about Exhibit D-2: the letter from BRP to Ole Tweet of AC. He  
indicated that the letter was sent out of an abundance of caution to comply with a US requirement  
that, in order to claim pre-grant damages, a patent holder must have provided actual notice. At the  
time the letter was sent, BRP had no knowledge of any infringement by Arctic Cat and a similar  
letter was sent to Polaris.  
[204] The cross-examination showed the many and significant discrepancies that exist with the  
measurements of the rider used in various patents. The witness was not able to explain where the  
measurements came from and how there can be such discrepancies. It does not appear that much  
attention was paid to that issue.  
[205] The witness confirmed during the cross-examination that the phrase biomechanically  
neutralwas new to him when it was used by Mr. Watson during the interview with the Canadian  
examiner in February 2006. Indeed, the only reason for adopting such terminology was for the  
purpose of satisfying the concerns raised by the examiner.  
[206] There was also extensive questioning of Mr. Cutler about attempts made in the U.S. at  
patenting, resulting in some cases in applications not issuing to patent (e.g. the 268 US  
Page: 77  
application). Indeed, there was some interest in comparing with litigation in the U.S., but valid  
objections curtailed the cross-examination on that front.  
[207] The re-examination gave an opportunity to the witness to clarify why “metrics” were used  
instead of relying on a standard rider. Mr. Cutler explained that the American counsel was satisfied  
that the person skilled in the art would understand the invention. However, Mr. Cutler was a bit  
uncomfortable with that(transcripts, February 17, 2015, at p.130). Without disagreeing, he  
preferred something more definite. That is how an effort was undertaken to standardize the rider.  
The standard rider became a set of dimensions and attachment points. In essence, Mr. Cutler  
thought metrics could not hurt and they might help.  
[208] The Court draws from the candid testimony of Mr. Cutler that the drafting model of the  
Patents (106 and 813) came about in the fall of 1999, with drafters unfamiliar with snowmobile  
and an instructing inventor who seems to have derived measurements from observations of what  
was considered a 50th-percentile male sitting on a reconfigured snowmobile. His evidence does not  
elucidate how the measurements were arrived at or how much of a difference exists with  
measurements that would have been taken from the conventional snowmobile. In other words, the  
measurements were only meant to represent the new structure and construction.  
[209] The same indirect technique of offering measurements of a standard rider sitting on a  
reconfigured snowmobile was used in the drafting of the 964 Patent.  
Page: 78  
[210] There is no indication of the level of change supposed to result from the various  
measurements, or what is produced by the various possible combinations given the ranges  
incorporated in the measurements. What is striking in my view in the testimony of Mr. Cutler is  
the lack of an explanation as to the correlation between the measurements and the new  
configuration. Mr. Cutler, one of the principal drafters of the Patents, takes his distance from the  
measurements of the 106 and 813 Patents that came exclusively from the inventors. It is very  
much unclear what they represent and the use that can be made of them following his testimony,  
Mr. Cutler disassociated himself completely from those measurements other than having  
recommended that they be included.  
[211] For something that is presented as revolutionary, one is left with the distinct impression of  
a lack of diligent action and rigor. It has certainly not been clear on this record that a measure of  
specialized expertise was applied to the drafting of their rider forwardPatents for instance.  
Indeed, it continues to be very much unclear how the indirect drafting technique used allows  
ascertaining what the invention is. The use of figures 19 and 20 in the 106 Patent was never  
explained either. Why have those figures included? What were they supposed to add?  
[212] The question came up regularly during the trial. How does one go from measurements to  
the reconfiguration contemplated by the Patents? Mr. Cutler’s testimony did not assist in  
answering the question.  
Page: 79  
(9)  
Robert Strauss  
[213] Mr. Strauss is the owner/operator of Rob’s Performance Motorsports in Johnson Creek,  
Wisconsin. The store sells snowmobiles, ATVs, personal watercraft, and UTVs as well as PACs  
(Parts, Accessories, and Clothing). The company has been operating since 1982. Mr. Strauss  
testified about his involvement with, and his enthusiasm for, the REV.  
[214] In 2001, he was invited by Mr. Boisjoli to test a new vehicle developed by BRP. The group  
went to the BRP facility in Cabano, north of Quebec City, where they went through “the normal  
formalities that I had always been accustomed to, the non-disclosure and the talk about the security  
of what we were going to do.” They were shown a vehicle on a table that, to Mr. Strauss,  
“represented a complete departure” from vehicles in the snowmobile industry. He compared the  
snowmobile to a seesaw where the rider would sit at the fulcrum point rather than at the rear of the  
vehicle. He testified that the fulcrum is where a rider would want to sit, especially for aggressive  
riding, but traditionally the steering column configurations would get in the way and rider fatigue  
would prevent long-term maintenance of such a position. When he rode the vehicle it took him  
about five minutes to adapt. He testified about his immediate eagerness to get the vehicle into his  
store to sell to customers.  
[215] The launch of the REV took place, in the racing world, at Spirit Mountain in Duluth,  
Minnesota, in late November 2001. He was in attendance to assist some racers that his dealership  
supports and he saw Ski-Doo unveil the REV publicly. He testified that there was “buzz in the  
 
Page: 80  
paddock or the pit area like no other time” and that the buzz spread on forums and elsewhere in the  
snowmobile community.  
[216] When BRP launched the REV for sale at a Club (sales convention) in late February or  
March 2002, the “sales went through the roof” for the product. Just prior to the Club, Bombardier  
provided the dealers with prototypes that customers could test. Mr. Strauss indicated that  
customers of other brands of snowmobiles became Ski-Doo customers because of the REV. Over  
the course of 12 months when the REV was introduced, Mr. Strauss indicated that he went from  
third in his area to first place. He testified that eventually competitor snowmobiles, including  
Polaris, incorporated REV technology into their machines.  
[217] Mr. Strauss testified about the importance to his company and livelihood of the PAC  
(Parts, Accessories & Clothing) side of his business and listed various examples of products (e.g.,  
helmets, clothing, customizable colour panels) which are branded and contribute to higher profit  
margins than the vehicles. He indicated that his company averages about [REDACTED]. Prior to  
the REV, there was “no concentration on PAC business from the manufacturers.” He averages  
around [REDACTED] over a three year period per vehicle. Mr. Strauss testified about the Blade  
snowmobile with a picture of the vehicle (P-22). He indicated that he had ridden the vehicle for  
many miles from the early 2000s well before his first encounter with the REV. He described it as  
conventional with good execution of suspension development and that a rider would sit the same  
way as they would with any other prior snowmobile. As for the Yamaha SnoScoot, he described it  
as being designed for children and it did not change the snowmobiling world.  
Page: 81  
[218] The cross-examination of Mr. Strauss confirmed that he is an enthusiastic endorser of the  
BRP products. He recalled clearly the two-hour drive of the REV in Cabano in 2001 and stressed  
that his assessment was with respect to marketability, as he was not invited to assess the  
mechanics of the vehicle.  
(10) Bernard Guy  
[219] Mr. Guy is Vice-President, General Regional Director for the North American region for  
BRP; he has been in this position since June 2014. He is responsible for sales, marketing, after-  
market service, and network development for all BRP products except Evinrude products. He has a  
Bachelor degree in Mechanical Engineering and an MBA from Sherbrooke University. He was  
Director of Engineering for snowmobiles at BRP from 2000 to 2002, where he was responsible for  
engineering, research, and development for snowmobiles.  
[220] Mr. Guy testified about the timeline for the development of the REV, using a timeline he  
had prepared for the litigation to help him with dates. He first heard about the REV near the end of  
1998 when it was a hotly discussed topic in the engineering department. He first saw a prototype  
in early 1999, when he immediately noticed the difference in position and wondered if the rider  
would be sitting too high to be stable; he also noticed the pyramidal frame which he knew would  
make the snowmobile more rigid but also posed problems with how to place the components in the  
snowmobile.  
[221] Mr. Guy testified that he first tested the prototype in winter 2000-2001 when he and project  
director Robert Handfield stayed late to try it on the isolated trails around the research centre.  
 
Page: 82  
When he (on a conventional ZX) was not able to keep up with Mr. Handfield (on the REV) owing  
to the bumps in the terrain, he was convinced that the REV would be a “sled” for the cross country  
segment, but was not convinced that it would work for the mountain or touring segments.  
[222] When he became Director of Engineering for snowmobiles, the REV was at the production  
stage for the P2 vehicles. At the P2 stage, the focus is on functionality (does the snowmobile work  
or not) and at the P3 stage it is on reliability and endurance. At the P2 stage they also need to  
decide whether to proceed with “hard tooling” [REDACTED] or “soft tooling” [REDACTED]  
depending on how many vehicles they wanted to produce; Mr. Guy testified that at the end of  
winter 2001 they decided to invest in the hard tooling which allows for grand scale production.  
[223] Prior to the launching of the REV there was much worry about whether the market would  
accept it. To help encourage acceptance/adoption of the REV, Mr. Guy testified that they took  
some extra steps in the 2001-2002 winter: they entered a prototype in an open mod racing class;  
invited media to a private trial so they could have articles prepared for January/February (just  
ahead of launching in March); they produced 160 P3 prototypes (100 more than normal) so that  
consumers could try out the vehicles prior to ordering; and they made a brochure explaining the  
development of the REV. These steps were planned at the end of 2000, beginning of 2001.  
[224] Orders were made with vehicles delivered to dealerships between August and November  
2002 (considered a 2003 model year). He testified that from the launch they went from third in the  
market (Polaris being first) to first place; prior to the launch they had around [REDACTED] of the  
market and at the end of 2003, they had a [REDACTED] market share (with the REV only in the  
Page: 83  
cross-country segment). Mr. Guy testified that currently BRP has [REDACTED] percent of the  
North American market.  
[225] Mr. Guy also testified about the response the industry media had to the REV. Most of the  
articles collected in P-32 are in favour of the REV, but all agree that it is radically different. Mr.  
Guy also produced P-33, a binder of competitor reactions including criticism by Polaris of the  
REV for forcing riders to change the riding position.  
[226] The same platform can be used for different segments (e.g., the chassis platform remains  
the same but a longer drive track is used for a mountain vehicle). Each model can have different  
packages; he compared it to the different trim packages. Utility vehicles can be on the REV XU  
platform but also can be adapted on other REV platforms, reflecting the range of utility  
snowmobiles. The cross-country segment was developed as an in-between model of snowmobile  
able to ride on trails and to go into the deeper snow. Mr. Guy explained that, since the snowmobile  
industry is a mature market, the manufacturers keep trying to find new sub-segments and niches to  
exploit. In December 2011, BRP purchased two Arctic Cat snowmobiles (an N800 and a F800;  
2012 model year). These snowmobiles were purchased to be able to take measurements to  
determine if they infringed the REV Patents.  
[227] Mr. Guy also discussed the SnoScoot. He testified that he had heard that Arctic Cat was  
arguing that the SnoScoot was prior art. He testified that it was a child-sized vehicle made by  
Yamaha in the late 1980s to early 1990s and had 8-12 horsepower with a maximum speed of 20  
miles per hour. Although it has skis, an engine, etc. like a snowmobile, Mr. Guy does not believe  
Page: 84  
that it is prior art because an adult cannot sit on it in an advanced position, nor does it address the  
issue of speeding through bumps like the REV (“It practically absorbs no bumps. It just drives  
slowly over the bumps.”).  
[228] Mr. Guy testified about Exhibit P-35, an updated list of AC models from the 2007 to 2015  
model years that BRP alleges are infringing; he stated that the information in the chart came from  
Arctic Cat brochures. He testified that BRP did not launch the lawsuit until December 2011  
because the infringement occurred gradually on models with limited production runs and the  
company had other priorities during the financial crisis in 2008-2009. Mr. Guy stated that when  
they saw the introduction of the ProCross and ProClimb chassis, they felt that the “infringement  
appeared even more evident” and “too close to what we considered to be our intellectual property”  
and commenced the proceedings.  
[229] Mr. Guy testified about damages based on analysis contained in Exhibit P-36. Mr. Guy  
provided documents setting out sales data and market share information collected by the  
International Snowmobile Manufacturer Association for BRP, Arctic Cat, Polaris, and Yamaha, by  
season and by segment between 1999 and 2014. He testified that the data showed the impact of the  
introduction of the REV in each segment (in 2002 in North America, before the REV, BRP had  
[REDACTED] of the cross country market; in 2003, it had [REDACTED]). He also testified about  
a list, created by the BRP Product Planning Department, of AC and BRP snowmobiles from 2007  
to 2014 and in which segments the companies offer the snowmobiles. BRP had manufacturing  
capacity to produce the alleged lost sales of [REDACTED] units per year, as this number  
represents around [REDACTED] days of production which would be easy to add without  
Page: 85  
incurring additional expenses. He provided an Excel spreadsheet setting out all sales of BRP and  
Arctic Cat in Canada and the United States (each entry has province, manufacturer, model name,  
market segment, model year, platform, and number of units registered by  
state/province/model/country). He provided an Excel chart setting out the data for all  
manufacturers (Polaris, Arctic Cat, BRP, and Yamaha) from 2007 to 2014 with the sum of units  
sold per model each year.  
[230] The BRP dealer network across Canada has approximately [REDACTED] dealers, across  
the 10 provinces and territories. Arctic Cat has approximately 20-50 fewer dealers than BRP. Mr.  
Guy stated that the size of the dealer network would not have prevented them from selling  
[REDACTED] additional units per year, as they sell approximately [REDACTED] snowmobiles  
per year.  
[231] Mr. Guy testified about the practice of BRP with regard to granting licences for its  
technologies. He indicated that it was not usual practice for BRP to grant licences and the licences  
that he could think of over his 28 years’ experience were related to judicial proceedings.  
[232] Mr. Guy’s cross-examination explained the circumstances under which some testing of the  
prototypes took place and the availability of information relating to the prototypes that were  
developed.  
Page: 86  
B.  
AC’s witnesses  
[233] Arctic Cat had also a number of witnesses who were heard at trial. As with the witnesses  
produced by BRP, only where the evidence of experts is relevant to an issue will there be reference  
to the experts.  
(1)  
Brad Darling  
[234] Mr. Darling, AC’s corporate representative at trial, joined Arctic Cat in 2000 as a district  
sales manager in Southwestern Ontario. In October 2003 he became the National Sales Manager  
for Canada for Arctic Cat Sales Inc., until May 2008 when he became the North American Sales  
Director for Arctic Cat Sales Inc. In January 2011 he became the Vice-President and General  
Manager of Arctic Cat Inc.’s snowmobile division. Mr. Darling is not an engineer.  
[235] Arctic Cat manufactures snowmobiles, ATVs and related parts, accessories, and clothing in  
Thief River Falls. Thief River Falls is a town of approximately 8,500 people in Northern  
Minnesota; Arctic Cat employs 1,300 people in Thief River Falls. The company employs a total of  
approximately 1,600 people. Arctic Cat Inc. manufactures the snowmobiles and Arctic Cat Sales  
Inc. sells the snowmobiles to the dealer network. Arctic Cat has a Canadian branch office in  
Winnipeg to service the Canadian dealer network. The snowmobile industry consists of four  
brands: Ski-Doo, Polaris, Arctic Cat and Yamaha. The four are members of the International  
Snowmobile Manufacturers Association (ISMA).  
[236] Mr. Darling testified about the following snowmobile segments:  
   
Page: 87  
- Youth (for children under age 12; only goes 13 km per hours, limited gas capacity);  
- Utility (customers using them for work; longer track, bigger skis, better flotation in snow,  
often a wider track, not high performance, increased storage and carrying capacity);  
- Touring (generally two people, sometimes three people; lots of storage, sometimes out  
overnight, usually on a trail, lots of ‘creature comforts’ like heated seats and handlebars);  
- Mountain (a longer track; usually off trail in deep powder);  
- Performance (mostly on trails; shorter track, suspension and speed are important;  
snowcross racing fits in this category);  
- Cross-over (a hybrid between the Mountain sled and Performance sled for on and off trails)  
Referring to the so-called “Youth segment”, the witness indicated that he owned an Arctic Cat  
Kitty Cat snowmobile and had seen many over time, including one at the Bombardier Museum.  
[237] Arctic Cat is very active on the snowmobile racing circuit. Racing is used for research and  
development, but also for the purpose of building and marketing the brand. It appears that racing is  
a more important component of the Arctic Cat Brand than for BRP, yet Polaris and Ski Doo are  
active and certainly more active than Yamaha, the other major player in the industry.  
[238] One of the main characteristics of a snowmobile owner is that he is loyal. He is middle  
aged and owns more than one snowmobile. Brand loyalty is high within all brands. It is therefore  
essential that customers be satisfied with the product. Significant emphasis is put on Arctic Cat  
dealers: they need to understand the product and the needs of customers. Thus training is offered.  
Page: 88  
Whenever a new product is launched, there is a measure of dissatisfaction coming mainly from  
glitches that appear. Dealerships are essential towards product satisfaction.  
[239] While BRP requires its dealers to distribute its products exclusively, only 79% of the 198  
Canadian Dealerships are exclusive dealers of AC products. As heard from other witnesses, Mr.  
Darling confirmed that AC too purchases snowmobiles from the competition in order to have a  
clear appreciation of the features of its snowmobiles. Similarly, he confirmed that manufacturers  
seek to minimize the number of different platforms. There will be many models, but they will  
show the same basic platform.  
[240] Arctic Cat brochures and website (the alleged source of the information in Exhibits P-34  
and P-35) are done by their marketing agency, Periscope. They often photograph the same  
snowmobile to represent multiple models (e.g., where the engine, track, gauges, suspension might  
be different); they either physically change the decals on the snowmobiles for the photographs or  
they can be photoshopped afterwards. As examples of this, Mr. Darling pointed to a photo  
purporting to be an M6000 Sno Pro 153 (a Mountain segment snowmobile) that was actually an  
XF (Crossover segment snowmobile) (Exhibit D-51); and a snowmobile purported to be a 2013  
M800 162, but has a 153 inch track (Exhibit D-61). Mr. Darling noted that the photographs are  
taken of prototypes rather than production models and that the specifications have a disclaimer  
saying they are subject to change. He has not conducted a review of every model and every image  
in the brochures or on the Arctic Cat website. Mr. Darling indicated that once a unit goes to  
production, the Parts Illustration Manual will list accurate information.  
Page: 89  
[241] The witness showed that, at times, brochures created by AC are not accurate. The right and  
more accurate specifications are to be found in the parts manuals, if only because these manuals  
would be created after the production of snowmobiles has begun. He did not go beyond very  
limited instances.  
[242] Mr. Darling testified about the magazines in the snowmobiling industry; he stated that  
there were seven magazines for the North American market. Arctic Cat (and the other  
manufacturers) shows the magazines and other media the product lines in what is called a “sneak  
peek”, usually at the end of January. They let the magazines take some pictures, give them a “press  
kit”, and let them sit on prototypes. After seeing the products, the media are under an embargo not  
to talk about the products. The media are then able to ride the prototypes and take more photos at  
an event called “Snow Shoot” which takes place at the end of February or beginning of March, in  
Colorado. Mr. Darling produced an example of a press kit from the 2012 model year (Exhibit D-  
50).  
[243] Mr. Darling testified that Arctic Cat had a licence agreement with BRP that also included  
Suzuki, signed in April 2007 (Exhibit D-39). At the time the agreement was signed, all of Arctic  
Cat’s 2007 model year snowmobiles were available to the public, including the allegedly  
infringing Jaguar and F series.  
[244] A number of documents were introduced through this witness in the cross-examination  
conducted by BRP counsel. The witness was questioned on the support AC offered to its dealers.  
Page: 90  
[245] The witness was cross-examined about what constitutes a platform which corresponds, to  
some extent, to the chassis of the snowmobile. The chassis would include the suspension while the  
platform is more of the tunnel and the front bulk head and the commonality. The witness  
acknowledged that a press kit produced in early 2011 (exhibit D-50) referenced a pyramidal  
design. Similarly, AC was using the words neutrally balanced riderunder their reference to the  
Twin Spar Chassis.  
[246] Mr. Darling suggested during his examination-in-chief that some brochures would not be  
accurate as to the specifications of some snowmobiles presented therein. On cross-examination,  
the witness was asked about the 300 or so models produced by AC over the years. Although it is  
true that the witness had not been ordered to conduct a review of the models for the purpose of  
discovery, he can be asked about other models after he has suggested that some models are not  
properly described in the marketing documentation created by AC. The witness answered that he  
never checked all of the snowmobiles listed in P-34. It was confirmed that his knowledge is  
limited to what he offered during his examination-in-chief.  
[247] The witness acknowledged that AC had the capacity to measure centers of gravity as early  
as 2000 (Exhibit P-52). The AC Twin Spar was designed for a rider forward position, which  
confirms the interest in the rider forward position. Furthermore, the examination of D-50 and D-  
57, two brochures prepared by AC about the 2012 technology, tend to demonstrate that the  
pyramidal structure adopted by AC transfers the load(force) received at the front to the frame  
through the shock absorbers.  
Page: 91  
[248] The re-examination of the witness addressed an issue raised during the cross-examination  
about the financial position of AC. While the cross-examination about the 2013 AC’s annual  
report showed assets increased to $306M, from $255M the year earlier, and assets of $352M as of  
December 31, 2014 (without long term debt) according to the 10Q quarterly filing with the U.S.  
Security and Exchange Commission (Exhibit P-60), it was established in re-examination that, out  
of assets of $352M, $144M were tied up in inventory. In fact, AC listed $57M in cash and cash  
equivalents.  
(2)  
Ken Fredrickson  
[249] Mr. Fredrickson is a design engineer at Arctic Cat where he is responsible for designing  
snowmobiles using CAD programs. He has worked for Arctic Cat for 20 years. He attended a two-  
year technical college in Staples, Minnesota where he became a detailed draftsman, responsible for  
putting dimensions on part designs. He is a technician, not an engineer. He is a snowmobile  
enthusiast.  
[250] Mr. Fredrickson testified about his work with CAD (Computer Aided Design), in particular  
a software program called Unigraphics. He stated that he was responsible for taking snowmobile  
components, putting them into a 3D CAD system, and then arranging and moving them around.  
When a snowmobile project is in the CAD, it will have a master layout (top level of all  
components in the vehicle) and other smaller layouts of components which get changed more  
frequently.  
 
Page: 92  
[251] He testified about the process for designing a snowmobile at Arctic Cat; they typically take  
the production unit for the previous year and will adjust and tweak certain components based on  
what people want to change. Mr. Fredrickson testified about a series of drawings of a Twin Spar  
snowmobile (but could not identify the particular model) (Exhibit D-68). About a layout of the F4  
platform (D-71), he indicated that it showed an Arctic Cat snowmobile compared with a Ski-Doo  
ergo file. A coordinate measuring machine had been used to measure certain points on a Ski-Doo  
which he then imported into the Unigraphics software and connected the points with lines. He  
testified that he did not do anything with the file afterwards. He did not remember who gave the  
data to him, only that he was told it was from a Ski-Doo.  
[252] On cross-examination, Mr. Fredrickson was questioned about where the engine would be  
positioned. He answered that it is located before the front pig nose(the front of the snowmobile)  
and the heat exchanger. He testified that he would not call that location as the engine cradle.  
Although he had heard the term before, he had not used it himself.  
[253] Exhibit P-69, which is U.S. Patent 8, 528, 863, was brought to his attention. Mr.  
Fredrickson is listed as one of the inventors for the Patent having the name Snowmobile chassis  
with Tunnel. The Patent refers to engine cradleon numerous occasions. Although the 863  
Patent focuses on the tunnel, as part of the chassis, which is lighter in weight, yet stronger, the  
Patent refers to the engine cradle without defining specifically what is meant other than stating that  
(t)he engine cradle frame 106 is configured to form a space for receiving the engine (not shown)  
and also includes a front suspension support spar 108 that engages the tunnel 102. (Page 3, lines  
15 to 18) The engine cradlewas considered to be well known as being the space receiving the  
Page: 93  
engine. The witness, who acknowledged reviewing the patent application before it was filed,  
would refuse to agree that the engine cradle of his 863 Patent is the engine cradle of the 264  
Patent. That remained his answer in spite of the fact that claims 6, 7 and 9 are all referring to “(a)  
chassis for a snowmobile, the chassis comprising a front assembly including an engine cradle and  
front suspension mounts.Finally, Mr. Fredrickson readily acknowledged that Figure 1 of the 683  
Patent is an illustration of the frame of an AC snowmobile available in the courtroom throughout  
the trial (Exhibit D-65) (transcripts, March 2, 2015, p. 98)  
(3)  
Brian Sturgeon  
[254] Brian Sturgeon has been a sales representative for the past 10 years for a company, located  
in Minneapolis, called David Olson Sales. It sells machine tool equipment. After his graduation  
from high school, Mr. Sturgeon took some general business and sales courses at the Carlson  
Business School at the University of Minnesota. From 1987 to 1999, he raced for the Arctic Cat  
T&S racing team. From 1999 to 2005, he worked for Arctic Cat as the race manager, working with  
the race organizations, but being also responsible for the budget and liaising with the engineering  
department. He was responsible for all types of snowmobile racing.  
[255] In 1979, he began cross-country racing and did a few snowcross races in the 1980s; he  
raced both on Arctic Cat and Polaris products as a hobby. In the summer of 1987, he was called by  
Steve Thorsen who had been hired by Arctic Cat to put together a new factory Arctic Cat race  
team. Mr. Sturgeon was asked to drive for the T&S race team (named for Steve Thorsen and Dean  
Schwartzwalter). The T&S team did several forms of racing (snowcross, Ice LeMans, oval racing,  
drag racing).  
 
Page: 94  
[256] Using a series of photographs (Exhibit D-75), he testified about a snowmobile that Mr.  
Thorsen and Mr. Schwartzwalter built and modified in 1991 for the 1992 season. He stated that 10  
such snowmobiles were built. In building the snowmobiles, they took a production bulkhead and  
tunnel from an Arctic Cat Prowler snowmobile and made changes. He testified that they had had  
problems with the chassis flexing and added spars to reduce this. The shock mounts (where the  
shocks connect to the chassis) were changed, the steering post was moved to be more straight up  
and down (this moved the steering post out of the way but also allowed the driver to be more  
forward), and the rear suspension was modified. Before the spars were installed, the steering  
column was held in place by “a tube riding up and then over across the top and coming down each  
side” where each side of the tube had a “stamped piece of metal that was riveted to the tubes and  
riveted to the top of the tunnel to support the frame;” the handlebars were then “just bolted on  
through two holes on the top of that tube”. He indicated that there “really isn’t any strength added”  
with the original configuration.  
[257] After a race, the top-finishing snowmobiles were subject to a teardown and technical  
inspection according the ISR rules (the ruling body of snowmobile racing). When a teardown was  
taking place, “other racers, other mechanics, race managers from any race, you know, any  
manufacturer, engineers, whomever was involved with the racing” could be present.  
[258] Before cross-examination was to commence, the Court moved to an area in the court house  
where was available the actual snowmobile depicted in Exhibit D-75.  
Page: 95  
[259] The cross-examination centered on the configuration of a snowmobile racing on oval  
tracks. There is an offset front suspension; the rider is hanging on the handle bars when taking  
corners on the track, with the body hanging on the left to counter balance the centrifugal force  
generated by a snowmobile taking corners at close to 100 miles per hour; the handle bar itself is  
completely different than regular handle bars such that when the snowmobile is pointing straight,  
the handle bar will not be. Although the witness stated that the right handle was positioned to  
control the throttle in a curve (to the left), he had to acknowledge that the left grip is shaped in a  
completely different fashion, shaped hanging downward so that (the rider can hang off that  
(handle))(transcripts, March 2, 2015, p. 194). Finally, the witness had to concede that the  
snowmobile presented at Exhibit D-75, which is the vehicle that was inspected, is significantly  
different from a photograph found in D-77 (at p. 20 of an article published in Snow Week of  
October 14, 1991) with a single crossbar. Mr. Sturgeon was incapable of identifying the  
snowmobile on which he raced some 25 years ago.  
[260] On the other hand, Mr. Sturgeon continued to assert that the steering assembly was created  
for the purpose of stiffening up the chassis, with the steering post merely bolted to the structure.  
(4)  
Douglas Wolter  
[261] Mr. Wolter has a Bachelor of Science in Industrial Technology degree received in 1985  
from the Bemidji State University. He has worked for Arctic Cat for almost 20 years and is  
currently Director of Engineering Shared Services, where he is responsible for different  
engineering departments. That includes plastics, styling, prototypes, emissions, noise, vibration,  
and harshness, as well drafting for both snowmobiles and ATVs. From December 2006 to April  
 
Page: 96  
2014, Mr. Wolter was the Director of Snowmobile Engineering. Prior to 2006, he was a product  
team manager in the ATV division. Mr. Wolter raced snowmobiles from 1990 to 1998 (mostly in  
the cross-country segment but also in the snowcross segment).  
[262] Mr. Wolter testified about the product planning process at Arctic Cat: they plan in the short  
term for models for the next year or two as well as longer term planning which can involve new  
platforms or engine series requiring longer development. In his 20 years’ experience with Arctic  
Cat, the company has never employed someone specializing in ergonomics.  
[263] Once the decision is taken to make a new snowmobile, a System Design Specification  
(SDS) is written that sets out what the machine’s capabilities have to be. They then begin  
designing to those requirements using CAD and go through different prototype iterations to test  
options (usually 3 to 5 built per iteration). They then begin tooling or producing tools to  
manufacture the parts in mass production. They will then build a production validation build”  
(PVB) when it is ready for production and they want to test in a field environment or show it for  
marketing purposes. One month before production, they will build a pilot version which will go on  
to the assembly line as a first unit for the assembly workers to have as an aid in putting the  
snowmobiles together. He was involved in preparing the hard drive containing certain CAD files  
and printed drawings for this litigation. He testified that it contained “released CAD files or part  
drawings, it contains released sub-assembly files and it contains layout files for the models that are  
relevant to this case, which are F3s, F4s, F5s and 2011 -- or 2008 or 2011 race snowmobiles. And  
it also contains all PDF files that we have produced from these CAD files.” He stated that released  
files were those released for production and could not be modified. There were no CAD files  
Page: 97  
representing an entire snowmobile. He introduced a CAD example relating to a Firecat release  
assembly drawing of the front end design that was used from 2002 to 2006 (Exhibit D-98). He  
testified that the bill of material provides the “ingredients list” to build the snowmobile and is  
aimed at the assembly process, compared to the illustrated parts manual which is aimed at  
consumers and dealers.  
[264] Mr. Wolter also testified about the Trail Cat snowmobile, which Arctic Cat first produced  
in 1975. He described it as having “spars that go from the front spindle area and then back down to  
the tunnel to form spars. […] Above where these spars are, there is a triangulated structure that is  
fastened to that and that was a lot different and then the steering support was mounted to the top of  
that triangulated structure.” He testified that the snowmobile was sold in this configuration for one  
year as model year 1975 (Exhibits D-95 and D-96).  
[265] In the same vein, he testified about the Sno-Pony snowmobile, which was produced as a  
production model in the 1970s that could be purchased by the public. He described it as  
“position[ing] the rider very far forward on the machine compared to others in that time period.”  
The snowmobile also had a unique suspension system with one spring that was perpendicular to  
the skis. Mr. Wolter introduced photos of the Sno-Pony (Exhibit D-97).  
(5)  
Troy Halvorson  
[266] Mr. Halvorson is the Mountain Product Team Manager at Arctic Cat. He has worked for  
Arctic Cat for 18 years in Thief River Falls, Minnesota. His father worked for Arctic Cat and his  
brother and his son also work for the company. He has a degree in industrial technology from Cal  
 
Page: 98  
Poly. He has experience riding and racing snowmobiles since he was a child, as well as other  
recreational vehicles (motorcycles, dirt bikes, BMX, bicycle motocross).  
[267] In 1999, Mr. Halvorson began working on the development of the ZRs (including the 440  
race snowmobile) with a team that included Kirk Hibbert (team manager), Ron Bergman (project  
engineer), Ken Fredrickson, and Michelle McCraw (technician). He described the team’s  
experience with ergonomics, including himself, as not using specialists but with different members  
of the team trying things out and seeing what feels good to them. They design snowmobiles so that  
a wide range of rider sizes will have a good experience on the snowmobile. Mr. Halvorson  
testified that racing is very important to Arctic Cat in developing and testing products (e.g., when  
pushing parts to the limit in racing it can show what parts break easily and need to be  
strengthened). He also explained that, in the development of the ZRs, the weight of the  
snowmobile and mass centralization on the snowmobile were important, especially in snowcross  
where there are obstacles to get over and jumps.  
[268] In 2003, Mr. Halvorson became the leader of the team developing the new race sledfor  
the 2004 model year. From 2005 to present, he has been a team manager for both racing and  
consumer snowmobiles. In this role he has been involved in promotional events for Arctic Cat  
including Hay Days and Snow Shoot, where all snowmobile manufacturers present their  
snowmobiles to the industry media. At these events, he gathers feedback about what customers  
want. He described Arctic Cat customer as being “very brand loyal” and “bleed[ing] green” based  
on the Arctic Cat colour.  
Page: 99  
[269] Mr. Halvorson testified about the process at Arctic Cat for bringing out new racing  
snowmobiles. The company did so every year except 2007 when there was a change in the  
snowmobile racing stock class rules from a 440 engine to a 600 engine. There are different types  
of racing where Arctic Cat snowmobiles have been used, including ice enduros (racing on ice for  
“a lot” of laps), ice ovals (a smaller race car-type track with ice), hill climb racing (racers need to  
get to the top of a hill while navigating a series of flags), grass drags (a drag racing strip in a field),  
ice drags (drag racing on ice), and water cross (racing snowmobiles across water during the  
summertime), but that snowcross is the most popular form of racing. The 2003 440 Sno Pro was  
designed specifically for snowcross, and had certain modifications (e.g., a specially-designed  
footrest so racers feet would not get stuck if they were thrown off, and a seat that made it easier to  
stand up). Mr. Halvorson stated that motocross was really influential in the development of the  
2004 Sno Pro and introduced a media article from 2003 comparing it to a dirt bike (Exhibit D-  
115). He testified that Arctic Cat purchased a 2003 MXZ REV they used to ride against in the  
development of the 2004 Sno Pro. He stated that he personally had about 2 hours of riding time on  
the REV for comparison.  
[270] When AC wants to test a competitor snowmobile, it usually purchases them from  
dealerships. The company also gets information about the competition from the industry media,  
talking to customers, and on the internet forums.  
[271] Mr. Halvorson was aware of the T&S 2005 Mod snowmobile made by Steve Thorsen and  
Dean Schwartzwalter as he was shown the snowmobile at their facility. He stated that he saw “two  
down tubes that connected from the upper steering support area down to the front corners of the  
Page: 100  
front suspension.” He presented notes from his meeting with Mr. Thorsen in 2005 (Exhibit D-  
116). Mr. Halvorson testified that Arctic Cat acted upon this information by creating spars that  
became part of their 2006 Race Sled and presented the Illustrated Parts Manual for the 2006 Sno  
Pro (Exhibit D-117).  
[272] Mr. Halvorson discussed the F4 project in 2008 that became the ProCross/ProClimb  
launched in 2012 (Exhibit D-118). He indicated that there was a desire at Arctic Cat to communize  
the snowmobile platforms to increase efficiency, including using the same engine system (prior to  
the F4, the performance snowmobiles used the F3 platform and the mountain snowmobiles used  
the M series platform). Mr. Halvorson testified that Arctic Cat set a series of target costs and  
weights to strive for in the development of the F4 platform.  
[273] During cross-examination, the witness conceded that the rider ergonomics is an important  
feature of snowmobiles. However, on other issues this witness showed reluctance to concede the  
obvious. The general impression coming from the testimony was that the witness was attempting  
to avoid his cross-examination conceding that which would run counter to the case of his  
employer. For instance, the witness showed reluctance to concede the success experienced by BRP  
when it launched its REV and that AC was eager to have its own snowmobile to compete. In P-51,  
a document emanating from AC entitled Introduction 400 Sno Pro 2004, it would appear clear that  
AC wanted to “announce an early “pre-season” sneak preview for the 2004 race season, with its  
engineering department working definitely on the 440 Sno Pro in regaining superiority at the race  
track. The document goes on to boast of major changes to the rider position, ergonomics,  
handling…” Still, that same document listed as key improvement a new steering position, chassis  
Page: 101  
strength improvements and a new seat design. Similarly, it is quite obvious that the steering  
column as shown in P-51 had been put quite forward in the 2004 model compared to the year  
before model.  
[274] Exhibit P-50, an article introduced by AC’s representative Brad Darling, entitled 2004  
Arctic Cat SnoPro New Steering Position, coming from the SnowTech magazine of September  
2003, makes the point vividly that AC released information about the 2004 model earlier than  
usual. The article lists the key improvement that very much corresponds to the list found in P-51.  
The comparison overlay of the 2003 and 2004 models found in P-51 is also present in the article.  
Moreover, the article states that AC felt the need to keep racers from jumping brands as the BRP  
REV chassis was enjoying great success with its rider forward position. As the article notes, “… it  
only makes sense Arctic Cat would respond with a change in rider ergonomics, making the  
transition to a standing riding position easier.Asked directly why AC felt the need to introduce  
the new chassis, Mr. Halvorson was not able to offer much in response.  
[275] Somewhat surprisingly, an article in Maximum Sled Worldwide of September 2003 (P-  
102) which quotes Mr. Halvorson as saying that I spent a lot of time riding a REV last yearand  
I wanted to get to know it and thus incorporate some of its concepts to the SnoProis disputed for  
its accuracy, but quotes from Snow Week that deal with other features are accepted by the witness  
as being accurate.  
[276] On the other hand, Mr. Halvorson was more willing than other witnesses to recognize  
where the photographs presented as P-57 were taken. These photographs purport to demonstrate a  
Page: 102  
so-called tear downor tear apartof a BRP snowmobile. Mr. Halvorson readily accepted that  
the photographs had been taken in the chassis room on the AC premises.  
[277] However, at the end of the day, not much rides on this cross-examination, as the documents  
spoke for themselves. AC was eager to adjust in view of the reception received by the REV.  
[278] As indicated earlier, the evidence of expert witnesses will be reviewed if and when it  
becomes important in the resolution of issues. Here is a list of those experts:  
BRP  
AC  
Kevin Breen  
Daniel Cowley  
Mark Warner  
Robert Larson  
Christine Raasch  
Gerard Karpik  
Keith Ugone *  
Claude Gélinas *  
Devinder Grewal  
David Karpik  
Andrew Carter *  
Andrew Harrington *  
* On the issue of damages  
A short introduction about each expert witness will suffice:  
Kevin Breen:  
Together with Robert Larson, he was BRP’s principal witness on  
infringement and validity of the Patents. He is a mechanical engineer  
who holds a Master’s of Engineering in Industrial Engineering from  
the Midwest College of Engineering (1984). He has more than 35  
years of professional involvement with recreational vehicles and he  
is familiar with snowmobiles having worked and riding them;  
Robert Larson:  
Also an expert in Mechanical Engineering, Mr. Larson’s  
involvement in this case relates to one of his areas of expertise, the  
measuring of static and dynamic parameters of recreational vehicles,  
including geometry, center-of-gravity location and moments of  
inertia. He is a Senior Managing Engineer with Exponent Failure  
Page: 103  
Analysis Associates. He holds a Master of Science in Mechanical  
Engineering from the University of Michigan (1989);  
Christine Raasch:  
An associate of Mr. Larson, Ms. Raasch is a Principal at Exponent.  
After earning her Bachelor of Science degree in Mechanical  
Engineering at the University of Arizona, she went on to obtain a  
Master of Science and a Doctor of Philosophy (Ph.D.) in Mechanical  
Engineering from Stanford University. She completed a post-  
doctoral fellowship at the Rehabilitation Institute of Chicago and  
Northwestern University, doing research on the neuromuscular  
control of human movement. One of her areas of expertise is the  
biomechanics of human movement. She also works extensively with  
anthropomorphic test devices (or dummies);  
Gerard Karpik:  
Claude Gélinas:  
Mr. Karpik has more than 30 years’ experience in designing and  
building snowmobiles. Together with his brother David, who was  
retained by AC, they designed the Blade snowmobile;  
Mr. Gélinas is a Chartered Accountant. He holds a Bachelor of  
Business Administration from l’École des Hautes Études  
Commerciales (1981). He has developed an expertise in forensic  
analysis including defining value in litigation support;  
Keith R. Ugone:  
Devinder Grewal:  
Mr. Ugone is the Managing Principal at Analysis Group, Inc. He  
provides economic and financial services to clients, applying  
economic principles to complex financial issues to clients, applying  
economic principles to complex financial disputes. He holds a Ph. D.  
in economics;  
Mr. Grewal is a mechanical engineer with a Bachelor’s degree from  
the University of California at Berkeley, a Master of Science degree  
in Mechanical Engineering from Stanford University and a Ph. D. in  
Mechanical Engineering from the University of California at  
Berkeley. Dr. Grewal commented on the reports of Mr. Breen, Mr.  
Larson and Dr. Raasch on the REV Patents as well as performing  
some measurements;  
Mark Warner:  
Mr. Warner also offered his expertise on the BRP’s Rider Position  
Patents. He is a mechanical engineer with a Bachelor of Science  
degree in Manufacturing Engineering and a Master of Science in  
Mechanical Engineering, both from Brigham Young University. He  
has expertise in static and dynamic testing of vehicles, and it  
includes analysing and riding snowmobiles;  
Daniel Cowley:  
Another mechanical engineer, Mr. Cowley holds a degree in  
Mechanical Engineering from Iowa State University and a Master of  
Business Administration from the University of Northern Iowa. His  
Page: 104  
expertise was required by AC on the validity of the pyramidal brace  
assembly patent (264 Patent). Mr. Cowley spent 30 years working in  
vehicle design for John Deere: he was the lead engineer for the  
development of tractor frames;  
David Karpik:  
Andrew Carter:  
Mr. David Karpik is, like his brother, an expert in vehicle design. He  
was retained to discuss the 264 Patent. He is the owner of the Blade  
Motorsports Group, which sells the Blade snowmobile. He has  
extensive experience with snowmobiles;  
Mr. Carter’s expertise was called for on the issue of damages. He is  
the founding member of Ocean Tomo, LLC. Mr. Carter is a Certified  
Public Accountant licensed in the State of Illinois. He has a Bachelor  
of Science degree in Chemical Engineering from the Rose-Hulman  
Institute of Technology and a Master’s in Business Administration  
from the University of Chicago’s Graduate School of Business;  
Andrew Harrington: As with Mr. Gélinas, Mr. Harrington is a Chartered Professional  
Accountant. He is a managing Director of Duff & Phelps, in  
Toronto. Mr. Harrington has expertise in the quantification of loss  
and accounting of profits in intellectual property litigation disputes.  
IV.  
A.  
Construction of the claims  
The person of skill in the art (POSITA)  
[279] Since the Patent is addressed to a person skilled in the art, the characteristics of such a  
person, or group of persons forming a team, must be determined before an examination of the  
construction of the claims can be undertaken. That is at last something on which the parties were  
able to agree. Unfortunately, they were not able to agree completely on the characteristics of the  
POSITA.  
[280] There are evidently two types of patents in play in this case. One Patent is concerned with  
the frame assembly of snowmobiles and all-terrain vehicles (and similar vehicles). The other three  
   
Page: 105  
Patents, the so-called radical evolution vehicle (REV) Patents, are concerned with the position of  
the rider resulting from the new configuration of snowmobiles.  
[281] It is reasonable to conclude that the Rider Position Patents would be addressed to the same  
person skilled in the art, as proposed by Arctic Cat’s experts.  
[282] The POSITA would need, as proposed by most experts and in particular by Mr. Breen, an  
understanding of mechanics, dynamics and kinematics. It follows that mechanical engineers would  
be included in the team that would become the POSITA. The 106, 813 and 964 Patents specifically  
address the new position a rider would take on a redesigned snowmobile. There is little doubt that  
the POSITA needs knowledge and experience in snowmobile design, as acknowledged by Mr.  
Breen for BRP and Mr. Warner for AC. Given that the design of the snowmobile is a function of  
the new positioning of riders because of the new configuration, Messrs. Warner and Breen would  
agree that the POSITA has an understanding of human factors or biomechanics.  
[283] The 264 Patent is different. It is concerned with the frame assembly for vehicles such as  
snowmobiles and all-terrain vehicles. Although the disclosure in the Patent is broad enough to  
include vehicles other than snowmobiles, the claims are limited to the frame assembly of  
snowmobiles. Mr. Breen did not alter his definition of the POSITA when addressing the 264  
Patent. Mr. Cowley, for AC, would be satisfied with a POSITA that does not require experience in  
snowmobile design, an understanding of the laws of physics being deemed sufficient. That is  
certainly not the view of another AC expert who does not have formal training but has been  
designing, or re-designing, recreational vehicles for most of his career. For David Karpik,  
Page: 106  
knowledge of recreational vehicles, including snowmobiles, is an important feature of the skilled  
person. It is now clear that it makes a difference whether the expertise required can be general, as  
suggested by Mr. Cowley, or it needs to have some specificity as proposed by Mr. David Karpik  
(recreational vehicles) and by Mr. Breen (snowmobiles). Given that the invention seeks to enhance  
the ruggedness of vehicles that operate across a wide variety of different terrains and under a  
variety of conditions, but that the claims that fence the monopoly sought are restricted to  
snowmobiles, I would have thought that the 264 Patent is addressed at persons of skill who must  
understand the type of vehicle that is to be improved through this invention. It would therefore be  
appropriate for the POSITA to have experience in the field of snowmobile design, at least; the  
person of skill will of course have mechanical engineering expertise or the equivalent expertise  
acquired through many years of experience in the design of snowmobiles.  
B.  
Common general knowledge  
[284] Having described who the POSITA is, it is now necessary to determine what would have  
been the common general knowledge of the POSITA.  
[285] It goes without saying that it was well known what the essential elements of a snowmobile  
are: there is a frame, which is the main structural component, the drive train, the engine, skis and  
the track which is connected to the engine in order for the snowmobile to move. Because of the  
difficult terrain on which they operate, it was well known that suspensions are an important  
component. The POSITA knows that snowmobiles have seats of a straddling nature, sideboards of  
various configurations used by riders to set their feet and steering device connected to the skis.  
 
Page: 107  
[286] No doubt the POSITA would have known about engine cradlesand tunnels, terms that  
were commonly used.  
[287] The POSITA knows about the snowmobile using a seat that is of the straddling variety.  
Those seats are connected in one fashion or another to the frame. The POSITA would know that  
snowmobiles don’t use rear engines: the rider will have the engine in front of him.  
[288] I accept David Karpik’s testimony that the design of most snowmobiles in the 1980’s and  
1990’s was quite similar. That would have been common knowledge. The differences were more  
stylistic than anything else. Indeed, BRP argues that it changed the configuration of conventional  
snowmobiles with its REV (radical evolution vehicle).  
[289] It cannot be disputed either that the POSITA would know about the laws of physics as part  
as the general knowledge. The concepts of center of gravity (the point where the weight of an  
object can be said to be concentrated” , AC’s memorandum of fact and law, Claim Construction,  
para 44), mass centralization and moment of inertia (how easy to rotate an object about an axis)  
are not new and would have been well known to mechanical engineers. Thus, experts Breen,  
Warner and Cowley all agreed that a lower center of gravity would generally be desirable as it  
makes tipping over less likely and makes the vehicle more stable over bumps. Mass centralization  
makes it easier to drive the vehicle.  
Page: 108  
[290] The POSITA would be familiar with chassis rigidity: a lack of rigidity produces torsions,  
or flexes. It would have been known that there are various methods to increase rigidity, from  
thicker to heavier or stronger material.  
[291] Given that the POSITA has experience with the operation of snowmobiles, she is familiar  
with snowmobile riding, which is of significant importance when designing a new snowmobile.  
Accordingly, she knows about active riding, requiring for the rider to move about the snowmobiles  
he is riding. Thus, it would be well-known, as Mr. Fecteau testified, that riding the tank(the gas  
tank is usually situated toward the first half of the snowmobile), which consists of applying the  
rider’s weight forward, was used in some circumstances. Actually, the POSITA would know that  
this is consistent with mass centralization. Conversely, the POSITA would know that riding the  
tankis not the usual position as Mr. Wolter noted that he was riding the tank during races. An  
effort was needed to take that position and maintain it.  
[292] The POSITA knows that snowmobiles are equipped with sideboards used for foot rests,  
with different configurations that allow the feet to move back and forth. I accept Mr. Breen’s  
evidence that, given the design of snowmobiles in the 1980’s and 1990’s which was similar, the  
foot rests were in the forward position of the sideboards. That would generate foot rests that were  
generally known to include an upwardly angled position for supporting the feet of the rider seating  
in the “custom-type” position such that the rider would be comfortable” (Expert Report of Kevin  
Breen, P-39, para 70). That evidently does not mean that the feet would always be in that position.  
Indeed, when ridingthe tank the feet must, by necessity, be well back from the position they  
must be in when seated further on the straddling seat. The POSITA must have an understanding of  
Page: 109  
human factors or biomechanics in designing a new vehicle such as a snowmobile because of the  
recognition by the witnesses that the position of the rider changes, from ride to ride and during  
rides, whether that be racing, mountain riding, on trails or during leisurely Sunday afternoon  
excursions.  
C.  
Construction of the Patents-in-suit  
[293] With these considerations in mind, the Patents must be interpreted. The rules governing  
such interpretation are well known and are not in dispute.  
[294] First and foremost, claim construction must not be a results-oriented exercise. The Court  
does not have a view whether the Patents have been infringed or whether they are valid. The idea  
is to examine the language of the claims in an informed and purposive way, not in an overly  
technical or literal way. The Supreme Court in Whirlpool Corp. v Camco Inc., 2000 SCC 67,  
[2000] 2 SCR 1067 [Whirlpool], provides an oft-quoted road map to the interpretation of patents.  
For our purposes, it will suffice to reproduce para 49 of the reasons for judgment:  
As stated, the Federal Court of Appeal applied the “purposive  
construction” approach to claims construction in O'Hara, supra, and,  
with respect, I think it was correct to do so. The appellants'  
argument that the principle of purposive construction is wrong or  
applies only to infringement issues must be rejected for a number of  
reasons:  
(a)  
While Catnic, supra, dealt with infringement,  
the court had first to determine the scope and content  
of the plaintiff's invention. Lord Diplock was careful  
to relate his discussion of the “essential” features to  
the wording of the claims. It was these essential  
features considered without reference to specific  
issues of validity or infringement that constituted the  
“pith and marrow of the claim”. He canvassed the  
possible existence of “any variant” of a “particular  
 
Page: 110  
descriptive word or phrase appearing in a claim” but  
was careful not to link his discussion of claims  
construction to the particular variant in the  
defendant's allegedly infringing lintel. Indeed, for  
emphasis, he italicized the word “any” in “any  
variant”. A patent must not of course be construed  
with an eye on the allegedly infringing device in  
respect of infringement or with an eye to the prior art  
in respect of validity to avoid its effect: Dableh v.  
Ontario Hydro, [1996] 3 F.C. 751 (C.A.), at pp. 773-  
74. Claims construction cannot be allowed to  
become a results-oriented interpretation, but there is  
nothing in Lord Diplock's speech that would support  
such an erroneous approach.  
(b)  
Acceptance of the appellants' argument could  
result in a different claims construction for the  
purpose of validity than for the purpose of  
infringement (assuming purposeful construction is  
retained for infringement issues). However, it has  
always been a fundamental rule of claims  
construction that the claims receive one and the same  
interpretation for all purposes.  
(c)  
The orthodox rule is that a patent “must be  
read by a mind willing to understand, not by a mind  
desirous of misunderstanding”, per Chitty J. in Lister  
v. Norton Brothers and Co. (1886), 3 R.P.C. 199 (Ch.  
D.), at p. 203. A “mind willing to understand”  
necessarily pays close attention to the purpose and  
intent of the author.  
(d)  
Rejection of “purposeful construction” would  
imply the embrace of a purposeless approach that  
ignores the context and use to which the words are  
being put. Purposeless construction was rejected by  
this Court long before Catnic, supra, as in Williams v.  
Box (1910), 44 S.C.R. 1, per Idington J., at p. 10:  
If we would interpret correctly the meaning of  
any statute or other writing we must understand  
what those framing it were about, and the  
purpose it was intended to execute. [Emphasis  
added.]  
(e)  
In fact, a patent is more than just “other  
writing”. The words of the claims are initially  
Page: 111  
proposed by the applicant, but they are thereafter  
negotiated with the Patent Office, and in the end are  
accepted by the Commissioner of Patents as a correct  
statement of a monopoly that can properly be derived  
from the invention disclosed in the specification.  
When the patent issues, it is an enactment within the  
definition of “regulation” in s. 2(1) of the  
Interpretation Act, R.S.C., 1985, c. I-21, which says:  
“regulation” includes an order, regulation, rule,  
rule of court, form, tariff of costs or fees, letters  
patent, commission, warrant, proclamation, by-  
law, resolution or other instrument issued, made  
or established  
(a) in the execution of a power conferred by  
or under the authority of an Act, or  
(b) by or under the authority of the Governor  
in Council; [Emphasis added.]  
A patent must therefore be given such interpretation  
according to s. 12 of the Interpretation Act “as best  
ensures the attainment of its objects”. Intention is  
manifested in words, whose meaning should be  
respected, but words themselves occur in a context  
that generally provides clues to their interpretation  
and a safeguard against their misinterpretation. P.-A.  
Côté, in The Interpretation of Legislation in Canada  
(3rd ed. 2000), puts the matter succinctly when he  
writes, at p. 387, “Meaning flows at least partly from  
context, of which the statute's purpose is an integral  
element” (emphasis added). To the same effect see  
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at  
para. 21. These principles apply to claims  
construction by virtue of the Interpretation Act.  
(f)  
While the appellants express concern that  
“purposive construction” may open the door to  
extrinsic evidence of intent, as is the case with certain  
types of extrinsic evidence in the United States,  
neither Catnic, supra, nor O'Hara, supra, goes  
outside the four corners of the specification, and both  
properly limit themselves to the words of the claims  
interpreted in the context of the specification as a  
whole.  
Page: 112  
(g)  
While “purposive construction” is a label  
introduced into claims construction by Catnic, supra,  
the approach itself is quite consistent, in my view,  
with what was said by Dickson J. the previous year in  
Consolboard, supra, on the topic of claims  
construction, at pp. 520-21:  
We must look to the whole of the disclosure and  
the claims to ascertain the nature of the  
invention and methods of its performance,  
(Noranda Mines Limited v. Minerals Separation  
North American Corporation, [1950] S.C.R.  
36), being neither benevolent nor harsh, but  
rather seeking a construction which is  
reasonable and fair to both patentee and public.  
There is no occasion for being too astute or  
technical in the matter of objections to either  
title or specification for, as Duff C.J.C. said,  
giving the judgment of the Court in Western  
Electric Company, Incorporated, and Northern  
Electric Company v. Baldwin International  
Radio of Canada, [1934] S.C.R. 570, at p. 574,  
"where the language of the specification, upon a  
reasonable view of it, can be so read as to afford  
the inventor protection for that which he has  
actually in good faith invented, the court, as a  
rule, will endeavour to give effect to that  
construction".  
Not only is “purposive construction” consistent with  
these well-established principles, it advances Dickson  
J.'s objective of an interpretation of the patent claims  
that “is reasonable and fair to both patentee and  
public”.  
(h)  
The appellants suggest that “purposive  
construction” undermines the public notice function  
of the claims, and unfairly handicaps legitimate  
competition. The trial judge, they say, was able to  
salvage the '734 patent by narrowing the scope of the  
word “vane” in the earlier '803 patent by a restrictive  
“purposive” construction. However, purposive  
construction is usually criticized by accused  
infringers for tending to expand the written claims.  
In fact, purposive construction can cut either way.  
Here it enabled the appellants to escape infringement  
of the '803 patent. No doubt if the '734 patent had  
Page: 113  
never been granted, the appellants would now be  
strongly advocating a narrow “purposive  
construction” of the '803 patent, and of course the  
respondents would just as surely be advocating the  
contrary position. Purposive construction is capable  
of expanding or limiting a literal text, as Hayhurst,  
supra, points out at p. 194 in words that anticipate the  
trial judgment in this case:  
Purposive construction may show that  
something that might literally be within the  
scope of the claim was not intended to be  
covered, so that there can be no infringement…  
Similarly, two other experienced practitioners, Carol  
V. E. Hitchman and Donald H. MacOdrum have  
concluded that "[a] purposive construction is not  
necessarily a broader construction than a purely  
literal one, although it may be" (Hitchman and  
MacOdrum, “Don't Fence Me In: Infringement in  
Substance in Patent Actions” (1990), 7 C.I.P.R. 167,  
at p. 202).  
I have underlined some passages of para 49 for emphasis as they may be particularly relevant.  
[295] The other important case on claim construction is of course the companion case to the  
Whirlpool judgment. In Free World Trust v Électro Santé Inc., 2000 SCC 66, [2000] 2 SCR 1024,  
the Court was concerned with the extent to which the claims are sufficiently elastic to capture the  
machine constructed by Électro Santé Inc. As put by Binnie J. for the Court, to what extent does a  
patent monopoly protect ““the substance” or the “the spirit” of an invention, as distinguished from  
what is literally described in the written claims… ” The Court answered the question by ruling that  
there cannot be a consideration of the claims by resorting to the spirit of the invention in order to  
expand its scope. That is because the language of the claims defines the scope of the monopoly  
Page: 114  
itself. Thus, a balance is struck: (p)redictability is achieved by tying the patentee to its claims and  
fairness is achieved by interpreting those claims in an informed and purposive way(para 43).  
[296] If the language of the claims is clear and unambiguous there would not be a need to resort  
to the disclosure to construct the claims. If recourse to the disclosure is needed, as is often the case,  
it will provide context. But the construction of the claims is limited to using the patents. As found  
in Whirlpool, “…neither Catnic, supra, nor O’Hara, supra, goes outside the four corners of the  
specification, and both properly limit themselves to the words of the claims interpreted in the  
context of the specification as a whole.(para 49(f)).  
[297] That takes us to the construction of the two sets of patents, one concerned with the  
configuration of a newsnowmobile (the 106, 813 and 964 Patents) and one concerned with the  
frame construction (264 Patent).  
[298] The mind willing to understand will be open to the purpose and intent disclosed by the  
patents. I was struck at trial by some attempts that were made by some of the expert witnesses to  
favour a reading of the patents that would lead to a construction of some of the essential elements  
that can only be described as defying any common understanding of language.  
[299] It may be worth repeating that claim construction is a question of law. As such, it is a  
question for the Court that will receive the assistance of experts for the purpose of ascertaining  
how those skilled in the art would construe the patent. But I wish to stress that common sense is  
not excluded from the Court room. The expert assists the Court in order to put the trial judge in a  
Page: 115  
position to interpret the patents and their claims in a knowledgeable way. I repeat. Claim  
construction precedes the examination of possible infringements and the validity of claims. The  
use of experts is not enhanced when their interpretation is tainted by some pre-ordained outcome.  
[300] There are a number of terms that require an interpretation. They are seen as being essential  
to the Patents. I will start with the terms that are common to the Rider Position Patents.  
(1)  
Rider Position Patents  
[301] The 106, 813 and 964 Patents all share the same first sentence: The present invention  
concerns the overall design and construction of a snowmobile. The snowmobile is to be improved  
such that the position of the rider will be different. The three Patents also share the first sentence  
under Summary of the Invention: The present invention improves upon the conventional design  
by repositioning the rider on the vehicle and redesigning the layout of the vehicle to minimize the  
effect of the vehicle’s movement on the rider as they pass over uneven terrain”. One may therefore  
expect the Patents to explain how the new snowmobile is designed and constructed.  
[302] However, as already indicated, the three Patents do not proceed to describe the design and  
construction of a new snowmobile; instead we are presented with various measurements. The  
claims provide different ranges for those measurements. In that context, a number of terms have  
been identified as requiring an interpretation.  
 
Page: 116  
(a)  
snowmobile”  
[303] In this case, the term is found in the three Patents under review. It must be construed  
identically.  
[304] AC took the view that nothing in the Patents limits the snowmobile to a type or class of  
snowmobiles. As its expert Warner contended, it is merely a vehicle using an engine to travel on  
snow and ice. Thus, a children’s snowmobile would be a snowmobile.  
[305] On the contrary, BRP examines the three Patents and argues that the figures found in  
Patents 106, 813 and 964 all show a standard snowmobile, thereby excluding children’s  
snowmobiles which have by nature special and different features. The most significant information  
coming from these Patents is the use of the 50th-percentile human male rider to determine the new  
position of the rider once a snowmobile has been reconfigured. It stands to reason that the  
measurements used of an adult can only be in relation to the snowmobile to be used by an adult.  
BRP argues that the figures of the Patents show unmistakably that the Patents are concerned with  
snowmobiles that are driven by adults.  
[306] The Court has received evidence of an adult riding a children’s snowmobile. That is  
certainly possible. However, is that the type of vehicle these Patents are concerned with? When  
read in context, both the disclosure and the claims with the figures point to the snowmobile being  
constructed for adults. It appears beyond any doubt that the measurements in the three Patents can  
only have any meaning if considered with respect to a snowmobile constructed according to adult  
Page: 117  
measurements. I cannot see how a POSITA could include the children’s snowmobile, as a part of  
the snowmobiles those Patents are concerned with when constructed according to the size  
requirements of children.  
[307] The figures associated with these Patents are all of adult proportions starting with figure 1  
which is presented as a conventional snowmobile. Figure 1 of the 106 and 813 Patents is even  
referred to as a particular BRP model (page 7). The Patents show a departure from the riding  
position of the conventional snowmobile.  
[308] Similarly, the snowmobile that is displayed in these Patents is not one where rider and  
passenger are side-by-side, or one with more than one track. There is no cabin displayed in any of  
the figures in these Patents or even alluded to in the specifications. To put it bluntly, it is rather  
obvious that there is a particular type of snowmobile that is concerned with these Patents. As with  
other types of recreational vehicles, size matters. The youth snowmobile models are not suited for  
adults even if an adult can ride one occasionally because it will not be comfortable; they are not  
meant for them. The BRP Patents claim to reconfigure a different snowmobile. A purposive  
construction, as required, leads to one construction. Manifestly, the inventor is interested in the  
new configuration of the conventional snowmobile. The disclosure says that much. The use of the  
50th-percentile male is another indication that the proposed re-design is directed at a snowmobile  
built to accommodate an adult comfortably. Finally, the advantages touted for the new  
configuration would appear to be concerning the conventional snowmobile.  
Page: 118  
[309] The view put forth by Mr. Cowley, for AC, must be seriously discounted. He contended,  
without much to support the construction, that all types of snowmobiles are included for the  
purpose of these Patents. It is only if one ignores the language of the claims and does now allow a  
purposive construction that it is possible to suggest a definition of snowmobilethat could be as  
broad as that proposed by Mr. Cowley. The integrity of the claims is not accounted for. As already  
noted, as part of para 49 of Whirlpool, citing approvingly Consolboard Inc. v MacMillan Bloedel  
(Sask.) Ltd., [1981] 1 SCR 504 at pp 520 [Consolboard], (w)e must look to the whole of the  
disclosure and the claims to ascertain the nature of the invention and methods of its  
performance…being neither benevolent nor harsh, but rather seeking a construction which is  
reasonable and fair to both patentee and public. Here, the snowmobile in question is what a  
POSITA would easily recognize as a conventional snowmobile that BRP sought to reconfigure,  
not some miniature or special purpose snowmobile.  
(b)  
straddle seat disposed on the tunnel  
[310] AC argues that the seat must be mounted directly on the tunnel in order to be disposed on  
it. It must be attached directly to the tunnel. As I understand the position, AC would have it that  
the expression disposed onmust mean that there is nothing between the tunnel and the seat. I  
find myself unable to agree.  
[311] The Concise Oxford Dictionary, 9th ed, defines tunnel as an artificial underground passage  
through a hill or under a road or river, etc., esp. for a railway or road to pass through, or in a  
mine… 4 a tube containing a propeller shaft etc.”. The evidence of expert Breen, for BRP, is  
compelling. There has to be a structure rigid enough to be part of the frame that will have to  
Page: 119  
support a number of components, including the seat (and, of course, the person(s) sitting on it) and  
the drive track for the propulsion of the snowmobile. If there is not structure, there is no tunnel. It  
appears reasonable that the POSITA, who would be familiar with snowmobiles, would understand  
that the tunnel is generally made of bent metal sheets and that is what was intended by the  
inventor. That would not suggest that every snowmobile must have a tunnel. It is rather that these  
Patents require a tunnel.  
[312] The tunnel on a snowmobile is a structure; it is above the drive track which is running in  
order to move the snowmobile as it is operationally connected to the engine. Something that would  
provide the capacity to support a number of components does not become a tunnel simply because  
it assumes a similar function. If there is no structure, there is no tunnel. Hence, contrary to what  
was offered by Mr. Cowley, bicycles and ATVs do not have tunnels. Indeed, he was at a loss to  
show where they may be situated on these vehicles. It is not because a tunnel on a snowmobile is  
part of the frame and it supports the seat and other components that what supports components of  
another vehicle becomes a tunnel. It may perform a similar function, but a tunnel it is not.  
[313] The notion of a straddle seat is not controverted. Rather the difficulty stems from the use of  
the words disposed on. Those are in fact used numerous times in the claims. For instance, the  
engine is disposed on the frame, two skis are disposed on the frame, a steering device  
disposed on the frameas is the straddle seat disposed on the tunnel. As already seen, context  
counts when constructing claims. I cannot see how the use of the words disposed oncan entail  
the requirement of a direct connection between the seat and the tunnel. The seat only needs to be  
disposed on the tunnel where one considers the context in which the same words are used  
Page: 120  
elsewhere. That requires no more of a direct connection, without any other intermediate structure  
in between, as does the requirement that there be “two skis disposed on a frame. In that case, the  
specification teaches that (s)kis 116 are connected to frame 114 through suspension system 118  
attached to frame 114 and its forward end(106 Patent, page 9). As can be readily seen, the two  
skis disposed on the frameare in fact connected to the frame through the suspension system.  
[314] Furthermore, it would appear that the claims are explicit as to connections when necessary.  
The drive track which is disposed below the tunnelis also being operatively connected to the  
engine for propulsion of the snowmobile.  
[315] In my estimation, the evidence clearly favours giving the words straddle seat disposed on  
the tunnelwhat appears to be its natural meaning, that is that the seat must be above the tunnel  
which is part of the frame and will support the weight of the drivers. The straddle seat is not  
floating above the tunnel, it is not beside the tunnel, but it is on the tunnel. There is nothing that  
prevents some structure, or material, to be between the seat and the tunnel.  
(c)  
standard rider having dimension and weight of a 50th-percentile human  
male  
[316] That term is found in all claims.  
[317] The Patents state that they are concerned with a new overall design and construction of a  
snowmobile. By changing the configuration of a snowmobile, the rider will be positioned  
differently. As the 106 Patent posits, “a need has arisen for a snowmobile where the rider’s  
Page: 121  
position is improved to minimize the effect of the vehicle’s movement on the rider as it passes  
over uneven terrain.(page 1). As the rider sat some distance behind the center of gravity of the  
conventional snowmobile, the new configuration would seek to bring the rider forward. The 106  
and 813 Patents, which have very similar disclosure, provide a number of measurements using a  
rider in order to describe the newposition. It would be obvious to the POSITA that  
measurements, in order to be of any utility, would need to be taken from a particular type of  
individual, given the variety of human beings. Furthermore, such individual must be in a position  
that would be prescribed. He cannot be standing, or crouching, riding the tank.  
[318] That is why the 106 and 813 Patents speak of a 50th-percentile United States human  
male…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…” (page 9). The same 50th-percentile American male is used  
in the 964 Patent.  
[319] AC insisted that a snowmobile is to be driven by a human being, not a dummy(an  
anthropomorphic test device or ATD). That is stating the obvious. The point is rather that more  
standard dimensions of a rider are needed in order to define the newconfiguration of a  
snowmobile. Dr. Grewal, an expert produced by AC, asserted that there is no real standard rider  
because, after all, there are many different people who ride snowmobiles. Very true. But, again,  
that is not what the Patents are claiming. The point is that there must be a reference to which one  
would resort in order to take measurements in accordance with the many asserted claims. It is hard  
Page: 122  
to imagine that the POSITA would not be more than familiar with the 50th-percentile American  
human male.  
[320] The three Patents present the same figures (Figures 19 and 20 in the 106 and 813 Patents,  
and Figures 6 and 7 in the 964 Patent). There cannot be any doubt that these figures do not present  
accurate dimensions. There is evidently a measure of sloppiness in the presentation of these  
figures, especially so that the errors are so obvious, even to the uninformed. These errors were  
never clearly explained by Jonathan Cutler, the lead counsel and patent agent for BRP. AC  
stressed that there are probably more errors than there are correct measurements. Indeed, the whole  
prosecution of these Patents, presented at some length, discloses a lack of attention to fundamental  
details. However, contrary to what was asserted by expert Warner for AC, such obvious errors  
would not take astray the POSITA who would have readily and easily noticed the numerous and  
obvious errors. In fact, what the Patents insist on is that a 50th-percentile American man is used for  
the measurement of distances and angles in the asserted claims. I accept the testimony of Mr.  
Breen, for BRP, that, although unfortunate, those mistakes would not pose a particular challenge to  
the POSITA who has more than a passing familiarity with the notion of percentiles corresponding  
with various characteristics of human beings.  
[321] AC recognizes, rightly in my view, that the person skilled in the art would seek to  
supplement his knowledge, having noted without much trouble, the numerous mistakes in the  
figures presented in the Patents. There are numerous sources of information that relate to the 50th-  
percentile; the evidence of Peter Watson and Dr. Raasch, for BRP, shows that the variations over  
the last decades have not been significant.  
Page: 123  
[322] As already pointed out in Whirlpool, the patent is not to be read by a mind desirous of  
misunderstanding (para 49(c)). As Binnie J. states, “(a)“ mind willing to understand” necessarily  
pays close attention to the purpose and intent of the author.(para 49) The mind willing to  
understand, who happens to be the POSITA, would locate without much difficulty a substitute for  
the obviously mistaken dimensions of the figures found in the Patents.  
[323] There was an issue raised about the so-called “biomechanically neutral position. This is a  
term that came very late in the long process referred to as the prosecution of the 106 and 813  
Patents. The examiner at the Canadian Intellectual Property Office showed some reluctance  
throughout the process. In an effort to convince the examiner in February 2006 (the 106 Patent had  
been filed since December 1999 and the request for examination came only on August 8, 2003, as  
per P-24) who was raising again his discomfort with the seat and foot positions as not being  
definite (P-24, tab 14), Mr. Cutler sought an interview with the examiner in Gatineau (transcripts,  
February 12, 2015, pp.230 et al.). As had been done with the U.S. Examiner of the U.S Patent  
office, a prior art snowmobile and the reconfigured snowmobile (which by then had sold for 3  
years) were brought. It is then, in February 2006, that Peter Watson suggested the term  
(transcripts, February 12, 2006 at p. 235). Be that as it may, it does not matter how, and when, the  
term was introduced. Indeed, whether or not the term was new does not change the need to give it  
meaning.  
[324] Again, one should not lose sight of the requirement that the patent be given a purposeful  
construction. These are not merely words on a page. Whirlpool comes to the assistance and is  
instructive:  
Page: 124  
(e) In fact, a patent is more than just “other writing”. The words of  
the claims are initially proposed by the applicant, but they are  
thereafter negotiated with the Patent Office, and in the end are  
accepted by the Commissioner of Patents as a correct statement of a  
monopoly that can properly be derived from the invention disclosed  
in the specification. When the patent issues, it is an enactment  
within the definition of “regulation” in s. 2(1) of the Interpretation  
Act…  
A patent must therefore be given such interpretation according to s.  
12 of the Interpretation Act “as best ensures the attainment of its  
objects”…  
(Para 49)  
[325] The Patents are simply saying what the position of the rider is when measurements are to  
be taken to ascertain what the configuration of the snowmobile will be. The weight of the evidence  
favours that the expression biomechanically neutral positionwas not well known, yet it must be  
construed. Fortunately, the expression is defined in the 106 and 813 Patents:  
As would be known to a person skilled in the art, a biomechanically  
neutral position is one wherein each of the opposing muscles of the  
major supporting muscle groups that maintain the rider in his  
position are in equilibrium. This point may vary from rider to rider,  
given changes in height and weight from one rider to another. In  
cases of difficulty, it may be determined by taking a 50-percentile  
United States human male (having weight of 78 kilograms and  
dimensions shown in FIGS. 19 and 20), placing him on the  
snowmobile in the biologically 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 a 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.  
(Pages 9 and 9 a)  
Page: 125  
[326] When considered together with the figures in the Patents, the meaning of mechanically  
neutral positionemerges without much difficulty. The Patents are describing a neutral position  
once the seating position is assumed, with the hands on the handlebars, without exertion. The  
snowmobile has just started and it is going on a straight line, without turning the snowmobile or  
making an effort while climbing a hill for instance. The three Patents show, quite clearly in my  
view, what could be described as a normal position while seated on a snowmobile. Contrary to  
what was offered by expert Warner, for AC, the rider could not be lying face up or down and be in  
a biomechanically neutral position as defined. Not only does that ignore the purposeful  
construction of the Patent, which addresses the position taken by the rider, but it ignores the  
figures which one finds in the Patents in issue. That is the antithesis of the purposeful construction  
of claims.  
[327] The concept, once defined in the Patents and considered with the figures, is neither vague  
nor ambiguous. In truth, it is rather simple, especially when we consider the purpose for which it is  
used. It describes and defines a balanced posture on a snowmobile. The mind willing to understand  
has no difficulty seeing that (t)he biomechanically neutral position refers to a standard rider who  
is not exerting any significant muscular effort, limb extension, crouch or cocked orientation to  
achieve the body position(Expert Report of Kevin Breen, P-39, para 123).  
[328] I fail to see any difficulty with the standard positionof the 106 and 813 Patents.  
Surprisingly, AC argues that there is no clear definition of standard position. I would have to  
disagree given that the first claim of the 106 Patent speaks of a standard position defined as the  
standard rider straddling and being seated in a biomechanically neutral position on the seat with its  
Page: 126  
feet disposed on the foot rests in the footrest position and its hands disposed on the steering device  
on the steering position with the snowmobile being steered straight on flat terrain…” Similarly, the  
964 Patent defines the standard position.  
(d)  
footrests having a footrest position  
[329] AC sees the term as being vague and ambiguous. That is in spite of the fact a POSITA  
would be familiar with sideboards, on both sides of the snowmobile, used as footrests.  
[330] The context in which the terms are found is as one of the elements comprised in a  
snowmobile, as found in independent claims of these Patents:  
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 there on, the footrests having a footrest position;  
[331] AC seems to assume that the feet may go in different places as the rider’s feet move  
routinely forward and backward during normal riding.  
[332] As for footrest position, it is defined at p. 10 of the 106 and 813 Patents:  
The rider’s feet 146 rest on footrests 134 in footrest position 138 just  
behind the center of gravity 144 of the snowmobile 144. The footrest  
position 138 is the location of the arch of the foot of the rider 126  
when his feet are placed in normal operating position on the vehicle.  
Under normal operating conditions, the rider’s feet 146 will rest on a  
forward portion of the sideboards. Preferably, toeholds 145 are  
disposed above these forward portion and permit the rider to  
releasably secure himself to the vehicle.  
Page: 127  
That definition is clear. In normal operating conditions, the feet will rest on the forward portion of  
the sideboards. The normal operating conditions, in the context of these Patents, have to be when  
the rider is seated on the snowmobile. Once again, the purpose of the Patents is to define the  
configuration of a snowmobile. To satisfy that purpose, the inventor has chosen to sit the rider, the  
50th- percentile North American male, in a seated position taking a natural posture as if riding the  
snowmobile being steered straight. It does not matter that a rider would typically move position  
during a ride or in different circumstances like mountain climbing. That would exclude when the  
rider chooses to stand up or operate the vehicle with one knee on the straddle seat. Similarly, there  
is nothing ambiguous, in my view, in the definition given in the 964 Patent, at page 9:  
Footrests 134 are disposed on both sides of the seat 128 and may be  
formed integrally with or be supported by the tunnel 119 of the  
frame 114. In the embodiment illustrated in FIG. 5, the footrests 134  
are integrally formed with the tunnel 119 such that the tunnel 119  
provides the structural support for the rider’s feet 146. 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.  
(e)  
steering device having a steering position  
[333] I share the view of expert Warner that the steering device is, on a snowmobile, the  
handlebar. However, we have to part company when he professes that the terms generate  
confusion.  
Page: 128  
[334] Once again, it is important to put the words in their context. Claim one of the 106 Patent  
provides for a snowmobile comprising:  
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 professed confusion would come from a sentence at page 4 of the 106 Patent that defines  
position. The seat defines a seat position, the steering device defines a steering position, and the  
footrests define the footrest position. The suggestion that the POSITA would interpret those  
words to mean the mechanical component, or the handlebar itself, that is somewhat mystifying.  
[335] The sentence taken from page 4 is rather clear: Where the seat, the steering device and the  
footrests are located will define the position. The position is defined by where the object (seat,  
steering device, footrests) is located. The location defined by where the handlebars are located  
does not change. The steering position is not the steering device but is rather defined by it.  
[336] The 106 Patent provides more details, consistent with what is found at page 4:  
In case 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.  
As can be seen, position and device are not one and the same. But one defines the other when  
referring to the 50th-percentile American male using the snowmobile in normal operating position.  
The POSITA will know what the normal operating position is.  
Page: 129  
(f)  
seat position or seating position  
[337] It is worth repeating again that the Patents seek to construct a newsnowmobile. In the  
words of the three Patents, (t)he present intervention concerns the overall design and construction  
of a snowmobile. The position of the rider, being a standard rider in a standard position, will be  
determined by the construction of the snowmobile and the arrangement of its various components,  
such that the standard position will be taken when in a seating position.  
[338] It is in that context that the 106 and 813 Patents and the 964 Patent refer to a seat  
positionand seating position. In the case of the 106 and 813 Patents, the new position assumed  
by the standard rider is defined on the basis of various distances or angles. A rider normally”  
seated on the reconfigured snowmobile would allegedly satisfy those measurements. The seat  
position is, in my view, clearly defined in the 106 and 813 Patents:  
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… and drawing line a from his shoulder through his  
hip. (…) The intersection of that line with the seat may be  
considered to be the seat position 130. It will also be understood that  
seat 128 will be covered with an amount of foam or similar padding-  
type material, and the amount of that foam will vary from seat to  
seat. Then the rider 126 sits upon the seat 128, his weight will cause  
the foam to compress and he will sing into the seat 128. Preferably,  
the seating position 130 is determined after this compression has  
occurred.  
[339] What is noteworthy is that the Patents assume some lack of precision. Preferably, not  
mandatorily, the measurements are taken after compression of the seat is completed. Moreover, the  
amount of padding will vary. The precision argued for by AC is in all likelihood not what the  
Page: 130  
Patents are representing. There is a range of distances and angles that are asserted. Much was  
made of the exact point where the hip or the shoulder would be used to draw a line between  
shoulder and hip. A person skilled in the art would not find much difficulty in ascertaining where  
the hip and shoulder points are located, with a measure of variance, as appears to be allowed in the  
Patents. The real question may be rather how the invention can be practiced with the sole  
assistance of these measurements. But, in my view, this is not a matter of claim construction. The  
claims may be constructed.  
[340] The 964 Patent is concerned with the position of the knees, ankles and hips of the rider of  
the reconfigured snowmobile. Contrary to the position on the then conventional configuration of  
snowmobiles, the knees are disposed in front of the ankles and below the hips. It is not overly  
surprising that the Patent would define the seat position to deal with the particular issue:  
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.  
(Page 8)  
The main concern expressed by AC has to do with the lack of complete precision. When  
considering the figures of the 964 Patent together with the definition, it would hardly be overly  
arduous for the skilled person to situate a reasonable point identifying shoulder and hip.  
Page: 131  
(2)  
Frame Construction Patent (the 264 Patent)  
[341] The 264 Patent is of a completely different ilk. Although it was to be deployed on the REV  
to increase the rigidity of the frame, as pointed out at page 1 of the Patent, 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 wide variety of different terrains and under a wide  
variety of conditions. It also said that the new frame facilitates the construction of vehicles with  
an improved rider positioning. The new structure connected to the frame became known as the  
pyramidal brace assembly. If the disclosure speaks of snowmobiles and other recreational  
vehicles, the claims are addressed only to snowmobiles.  
[342] A number of terms found in the 264 Patent require that they be interpreted. The meaning  
given to the term snowmobileas presented in the other three Patents will be the same in the 264  
Patent. The same is of course true of the straddle seat disposed on the tunnel.  
(a)  
engine cradle forward of the tunnel  
[343] The engine cradle, which is not found in the other three Patents, is an essential element of  
the frame construction of the snowmobile with the new pyramidal brace assembly. As is evident,  
the engine cradle is located in front of the tunnel. It is an engine cradle of a particular variety that  
is the essential element of the claims of an invention that adds rigidity to a snowmobile frame.  
[344] It does not appear that there is controversy around the nature of an engine cradle. It  
houses the engine. However, it is less clear from the testimony of experts whether or not walls are  
 
Page: 132  
required to have a cradle. Expert Breen, for BRP, speaks of a compartment to receive the engine  
which could be a structure delimitated by solid walls or an open structure. Expert Cowley, for AC,  
would appear to favour a more limited definition of engine cradle in his report of October 26, 2014  
(D-82): it includes a bottom and side walls (para 93). In his rebuttal report, Mr. Cowley expands  
on his explanation noting that the 264 Patent, when it refers to the engine cradle of the invention,  
always includes walls as well as a bottom.  
[345] What makes the explanation more dubious is that, in the same D-82, Mr. Cowley departs  
from his definition requiring walls when he describes the Blade’s engine cradle. Although he finds  
walls at the back and the front of the cradle, there does not seem to be side walls as he writes, at  
para 199 of D-82, that (t)he sides of the engine cradle are formed by the front tube and lower tube  
on the left and right side of the engine.  
[346] What the Court is concerned with, first and foremost, is the meaning being given by the  
264 Patent to engine cradleas used in the Patent. When considering the meaning to be given to  
the term snowmobile”, the Court was focused on the inventors’ purpose, their intention. That is  
why the snowmobile under consideration is likely to be an adult-size snowmobile. The same  
reasoning applies to the engine cradle required by the 264 Patent. The invention adds rigidity to  
the frame as it passes loads through the structure and frame. The engine cradle is an integral part of  
the frame assembly. It is said that the invention provides a frame assembly with a tunnel, an  
engine cradle disposed forward of the tunnel and connected thereto, and sub-frame disposed  
forward of the engine cradle and connected thereto(para 0011). The cradle is obviously much  
more than an area reserved to position the motor. Actually, the upper column extends upwardly  
Page: 133  
from the engine cradle to connect with the forward support assembly. When considered in its  
entirety, including the figures, the cradle has always walls, more or less complete. They never refer  
to, or even suggest, an open structure. It is a compartment connected to the tunnel and the sub-  
frame, with walls and a bottom. Some of the passages taken from the disclosure serve as a further  
illustration that the Patent contemplates the engine cradle to be a compartment, not an open  
structure:  
•  
[0064] Figure 4 also shows that engine cradle 56 is  
connected to tunnel 54 by any suitable means known to those  
skilled in the art. For example, engine cradle 56 may be welded  
or bolted to tunnel 54. Engine cradle includes a bottom plate  
66 and left and right side walls 68, 70, which are provided with  
left and right openings 72, 74, respectively. Left opening 72 is  
provided so that the shafts for the transmission (typically a  
continuously variable transmission or CVT) may extent  
outwardly from left wall 68. …  
[0065] As Figure 4 illustrates, left side wall 68 is provided  
with a beam 76 that is removably connected thereto. Beam 76  
may be removed during servicing, for example, to facilitate  
access to the engine components and peripheral elements  
disposed within left opening 72.  
[0078] Left side plate 162 extends forwardly beyond the  
front portion 170 of tunnel 86 to form a left engine cradle wall  
172. Similarly, right side plate 164 extends forwardly of front  
end 170 of tunnel 86 to form right engine cradle wall 174. At  
the lower edge of left and right engine cradle walls 172, 174,  
there are laterally extending portions 176, 178, which serve to  
strengthen left and right engine cradle walls 172, 174. …  
[0079] Left engine cradle wall 172 preferably includes an  
opening 182 therethrough. Opening 182 permits the shafts  
from transmission 106 to pass therethrough. Unlike left engine  
cradle wall 172, right engine cradle wall 174 does not include  
such an opening. Instead, right engine cradle wall 174 is  
essentially solid. Due to its construction, right engine cradle  
wall 174 reflects radiant heat from engine 104 back to engine  
104 to assist in minimizing heat dissipation from engine 104.  
Left and right openings 184, 186 are provided through left and  
right engine cradle walls 172, 174 so that a drive shaft 188 may  
pass therethrough. Drive shaft 186 connects to endless track  
Page: 134  
102 for propulsion of snowmobile 22. Opening 182 may  
include a member 189 about its periphery, also as illustrated in  
Figures 11 and 12, that provides clearance for the engine. Left  
engine cradle wall 172 also includes an opening 192 above  
opening 184 through which a shaft passes for part of  
transmission 106.  
[0091] Figure 19 is a perspective illustration of the  
embodiment of the present invention shown in Figures 13 and  
14 to assist in understanding the scope and content of the  
present invention. As illustrated, drive shaft 322 extends  
through left opening 182 in left engine cradle wall 172. A  
portion of gearbox 324 is also visible. In addition, left shock  
absorber 326, which is connected between cross-member 142  
and left support arm 216, is illustrated. Right shock absorber,  
which extends between cross-member 142 and right support  
arm 218 is visible in Figure 20. Furthermore, left forward foot  
wall 330 is shown at the forward end of left foot rest 166. A  
similar forward foot wall may be provided on the right side of  
snowmobile 22 (but is not illustrated herein).  
[00104] As illustrated in Figure 28, left brace 122 and right  
brace 124 extend upwardly from tunnel 370 to apex 372 where  
they connect to variable geometry steering bracket 374. Upper  
column 118 extends from left engine cradle wall 376 and right  
engine cradle wall 174 and also connects to variable geometry  
steering bracket 374. Forward support assembly 134 extends  
from sub-frame 294 to variable geometry steering bracket 374.  
[00106] This embodiment of the frame assembly of the  
present invention differs from the previous embodiments in a  
few respects. First, left engine cradle wall 393 includes a C-  
shaped opening 392 instead of opening 182. C-shaped opening  
392 facilitates maintenance of an engine (not shown) in engine  
cradle 394. …  
[00112] In addition, the creation of frame assembly 84, 190,  
191 has at least one further advantage in that the frame can be  
made lighter and stronger than prior art frame assemblies (such  
as frame assembly 52, which is illustrated in Figure 4). In the  
conventional snowmobile, frame assembly 52 included a  
tunnel 54 and an engine cradle 56 that were riveted together.  
Because frame assembly 84, 190, 191 adds strength and  
rigidity to the overall construction and absorbs and  
redistributes many of the forces encountered by the frame of  
the vehicle, the panels that make up the tunnel 86 and the  
Page: 135  
engine cradle 88 need not be as strong or as thick as was  
required for the construction of frame assembly 52.  
[My emphasis]  
[347] Mr. Breen may well have been right when he wrote at para 147 of his first report, P-39 that  
(t)he cradle could be a structure delimited by solid walls, or alternatively an open structure. The  
difficulty is that there cannot be found that alternative in the 264 Patent. There is simply no  
embodiment where walls can be eliminated: the walls are complete and incomplete, they are solid  
and they may have openings. But these are walls. One does not find any signal from the Patent that  
the alternative is under consideration. On the evidence in this case, the engine cradle considered by  
the Patent is of a variety that includes walls. There is no evidence to the contrary. Every indication  
is to that effect.  
[348] The evidence appears clear that the inventors meant for their invention to have a walled  
engine cradle in which the engine can be disposed (para 0015). The engine cradle is an essential  
element in a Patent, the purpose of which is to add ruggedness and rigidity. Is included in the  
frame assembly a tunnel, an engine cradle connected to the tunnel and a sub-frame. The cradle is  
not meant to be an area, but a solid structure.  
[349] Justice Louis Pratte of the Federal Court of Appeal reminded us of the limited role of  
courts in claim construction:  
A court must interpret the claims: it cannot redraft them. When an  
inventor has clearly stated in the claims that he considered a  
requirement as essential to his invention, a court cannot decide  
otherwise for the sole reason that he was mistaken.  
Page: 136  
Eli Lilly  
&
Co.  
v
O’Hara  
Manufacturing Ltd. (1989), 26 CPR  
(3d) 1, at p. 7  
The same idea was expressed in Free World Trust as if the inventor has misspoken or otherwise  
created an unnecessary or troublesome limitation in the claims, it is a self-inflicted wound.”  
[350] In my view, the inventors have not misspoken. They meant for a walled, robust engine  
cradle to be part of the more rigid frame which is the purpose of the Patent. I am convinced that  
the inclusion of a walled engine cradle was not done per incuriam.  
(b)  
“sub-frame”; “sub-frame forward of the engine cradle”; “a frame  
including a sub-frame at the front of an engine cradle”  
[351] The 264 Patent is about the construction of a frame that will enhance the ruggedness of the  
snowmobile, thus allowing it to operate across widely varied terrains. The sub-frame would appear  
to be one of the components of a frame assembly: it is a structure. As para [0011] states, it is an  
object of the present invention to provide a frame assembly with a tunnel, an engine cradle  
disposed forward of the tunnel and connected thereto, and a sub-frame disposed forward of the  
engine cradle and connected thereto.Both experts Cowley and Breen agree that the sub-frame  
receives the suspension.  
Page: 137  
(c)  
upper column extending upwardly from the frame”  
[352] The upper column is part of the frame assembly. It is how it is presented at para [0027] of  
the 264 Patent. It is a structure that supports the handlebar (para [0066]). It is generally an  
inverted u-shaped structure.  
[353] The parties agree that the upper column’s purpose is to reinforce the brace assembly. It  
provides structural support at the apex, thus assisting in holding the whole pyramidal frame  
assembly to the frame of the snowmobile. The nature of the upper column as a structural element  
meant to reinforce the pyramidal frame is made abundantly clear with the mention at para [0071]  
that, (i)f necessary, upper column 118 may be reinforced with a cross-member 120, but this is not  
needed to practice the present invention.”  
(d)  
pyramidal brace assembly”  
[354] No direct assistance is to be found in construing this term in the disclosure of the 264  
Patent. On the other hand, the term is used frequently in the claims (Claims 1 to 6, 8, 16 to 21 and  
23). It is really at the heart of the claimed invention. Nevertheless, the disclosure will be of  
assistance in that it discusses frame-assembly, pyramidal constructionand pyramidal  
structure.  
[355] The 264 Patent is all about the construction of a frame to enhance the ruggedness of a  
snowmobile and the ability of such vehicles to operate on difficult terrains. Thus, an object of the  
Patent is to provide a frame assembly with a tunnel, engine cradle and sub-frame (para [0011]). It  
Page: 138  
will have an upper column in some claims as well as a rear brace assembly and a forward support  
assembly. The rear brace assembly and the forward support assembly are attached to the tunnel,  
engine cradle and sub-frame, and together with the upper column where appropriate, they connect  
at an apex (para [0012]). The forward support assembly and the rear brace assembly, converging at  
an apex, with the upper column, form a pyramidal construction (para [0012]). It would not appear  
to be difficult to conclude that the frame assembly claimed by the invention would look like a  
pyramid.  
[356] The triangular surfaces converge to the top, the apex. The legs of the structure, the forward  
support assembly and the rear brace assembly, help form the triangles that would be of the shape  
of a pyramid. I have no difficulty in accepting that the structure provides structural support and  
rigidity. The figures unmistakably show the pyramidal structure. Although it is true that the Patent  
does not offer any dimension for the pyramidal structure, it is quite clear that the configuration of  
the structure must be in the shape of a pyramid.  
[357] There are reasons for that. The purpose of the framed assembly claimed is to distribute the  
weight loaded onto the snowmobile. Thus, the main components of the frame assembly form  
triangular or pyramidal configurations. Those bars that compose the frame assembly are said to  
work only in tension and compression, without bending. They are the brace. Therefore, each bar  
of frame assembly 84, 190, 191 intersects at a common point...(para [00109]).  
Page: 139  
[358] The purpose of the structure is to enhance the rigidity of the frame which improves  
handling. But the structure requires that the legs meet at an apex. It bears reproducing again this  
passage taken from para [00112] of the specification:  
[00112] …  
Because frame assembly 84, 190, 191 adds strength and rigidity to  
the overall construction and absorbs and redistributes many of the  
forces encountered by the frame of the vehicle, the panels that make  
up the tunnel 86 and the engine cradle 88 need not be as strong or as  
thick as was required for the construction of frame assembly 52.  
[359] AC spent not insignificant time and efforts dealing with the possibility that the rear legs in  
the pyramidal structure may be parallel, or close to, to each other. With all due respect, figures 14,  
19, 20 and 26 show that the legs converge toward the apex. They may not start converging from  
the start, but they converge. The figures may allow for legs to start running parallel with each  
other, but they do not remain parallel. Rather they turn to converge towards the top. That is how  
the Patent can speak in terms of pyramidal constructionsand pyramidal structure. The view  
expressed by expert Breen, for BRP, is the one that is consistent with the 264 Patent:  
162. The person skilled in the art would therefore conclude that  
the pyramidal brace assembly in fact only needs to be generally  
pyramidal, as long as the bars forming the brace assembly generally  
converge towards a common spatial region where external loads are  
transmitted. In that general configuration, the loads will indeed be  
transmitted in tension and compression through the bars, with little  
or no bending.  
(expert Breen’s report of October 26, 2014, P-39)  
Page: 140  
(e)  
form an apex not forward of the engine”  
[360] There appears to be a general agreement that the apex refers to the top, the peak, the  
highest point of a structure or a geometrical figure. Strictly speaking, in that context, it would be a  
high point towards which the elements converge. That is clearly the idea behind the pyramidal  
brace assembly. In the 264 Patent, claims 3, 6, 18, 21 and 23 describe the apex as being formed by  
the legs at the front and the back converging, in the words of claim 6, to form an apex not  
forward of the engine. Adding the upper column to the mix (claim 8) does not vary the concept.  
[361] It is not disputed either that the apex of this Patent is not expected to be a single point. It  
refers in fact to a spatial region which needs to be limited. I accept that Figures 6, 7, 13 and 14  
provide an adequate illustration of an apex in the context of this invention. The legs do in fact  
converge, and they converge to a relatively small area.  
[362] The skilled person in the art will have recognized from para [00109] of the disclosure that  
there is a need of a triangular or pyramidal configuration to the brace. As pointed out, (a)ll 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. As the disclosure  
acknowledges, the proposed frame assembly adds strength and rigidity; it also absorbs and  
redistributes many of the forces encountered by the frame, from front to back. It is the pyramidal  
configuration that allows such redistribution. If there is no convergence, the effect cannot be the  
Page: 141  
same. I therefore accept the evidence of Mr. Breen that the area of convergence must be relatively  
small in order to conform to the notion of an apex. As already indicated, such view is consistent  
with figures in the Patent depicting convergence.  
(f)  
legs  
[363] It will be apparent from the previous discussion that the 264 Patent requires that the legs,  
both at the front and at the back of the snowmobile, must converge to an apex in order to have a  
pyramidal configuration:  
[0017] …  
The left and right legs of the rear brace assembly and the forward  
support assembly connect to one another at an apex to form a  
pyramidal structure above the tunnel and engine cradle.  
[364] Although the legs at the back of the snowmobile are attached to the tunnel, or the frame,  
they are not always tubular structures. But they always converge to an apex. Similarly, the legs at  
the front of the snowmobile converge towards an apex. I accept Mr. Breen’s testimony that the  
converging is needed to transmit forces from the front (with the use of shock-absorbers) connected  
to each ski. I also accept that the front support assembly, which is a term used in a number of  
claims and in the disclosure (forward support assembly), provides a supporting structure. My  
own examination of the front support assembly persuaded me that the assembly provides support  
to the steering assembly because the legs converge toward an apex. That would not be a difficult  
observation to make by a POSITA.  
Page: 142  
V.  
Infringement  
[365] The examination of the possible infringement of the four Patents-in-suit should take place  
by examining the 264 Patent (Frame Construction Patent) alone, and then the three Rider Position  
Patents (106, 813 and 964), with the 964 Patent relating to the relative position of the ankles, knees  
and hips of a rider sitting on a newly configured snowmobile, the so-called REV(radical  
evolution vehicle), and the 106 and 813 Patents being concerned with various measurements  
(relative to centers of gravity, steering position, seat position and footrest position). These  
measurements must fall within a predetermined range according to the claims that have been  
asserted by BRP.  
[366] Out of 247 claims in the four Patents-in-suit, BRP has asserted 56 in its final statement of  
claim. Some claims were asserted to be infringed by all accused snowmobiles (divided in nine  
groups by expert Larson, for BRP, while other claims would have been infringed by all of the  
accused snowmobiles with the exception of some groups).  
[367] After a brief summary of the law pertaining to infringement will follow an examination of  
the 264 Patent. I will then review the three Rider Position Patents.  
A.  
The law  
[368] The burden is on BRP to establish infringement of its Patents. That standard of proof is that  
applicable in civil proceedings. And there is only one standard: proof on a balance of probabilities  
(F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41[McDougall]; Tervita Corp. v Canada  
   
Page: 143  
(Commissioner of Competition), 2015 SCC 3, [2015] 1 SCR 161; Canada (Attorney General) v  
Fairmont Hotels Inc., 2016 SCC 56). As the Court said in McDougall, the evidence must always  
be sufficiently clear, convincing and cogent(para 46). That has not always been the case.  
[369] Although the primary burden is on BRP to convince, the Defendants run the risk of being  
found as infringing the Patents if they do not offer evidence of their own. The issue is not that, in  
view of a lack of convincing evidence by the Plaintiff, the relative silence of Defendants would be  
held against them. It is rather that relying on the onus of proof as sole defence may not be  
satisfactory, as was the case in Whirlpool:  
[82] The evidence of infringement is not very satisfactory. The  
appellants declined to call a witness to describe the drive means  
utilized in their accused machines, preferring to sit back and argue  
that the respondents had not made sufficient proof. Whatever  
evidence of the mechanics of the appellants’ system was obtained  
during pre-trial discovery was apparently inconclusive. The trial  
judge based his opinion on a video showing a rotating General  
Electric auger under a medium or light wash load.  
[84] The appellants’ reliance on the onus of proof, while perhaps  
sound tactics, left the court in an awkward position. The  
respondents’ evidence of infringement, while thin, was put into the  
balance against no evidence at all. The Federal Court of Appeal  
concluded that the videotaped evidence supported the inference of  
continuous drive as well as the observed continuous rotation. I  
conclude that in the absence of any GE evidence to the contrary, it  
was open to that court to use that inference to find, as a fact,  
infringement of the continuous drive claim.  
[370] There will be infringement only if the accused product includes all the essential elements  
of a particular claim (Free World Trust, supra, para 31(f)).  
Page: 144  
B.  
264 Patent  
[371] AC argues that its snowmobiles do not include a seat disposed on the tunnel, an engine  
cradle, a sub-frame, and an upper column, all essential elements in their view.  
[372] It will not be necessary to analyse each of those terms in details as the Court has reached  
the conclusion that the proper definition of engine cradle, as used in the 264 Patent, requires that  
there be walls, complete or incomplete, in order for an engine to be disposed in the cradle(para  
[0015] and [0016]).  
[373] My review, as part of the claim construction, has convinced me that the engine cradle  
referred to in the 264 Patent is of a particular variety. As I have already indicated, expert Breen,  
for BRP, indicated very fairly that (t)he engine cradle could be a structure delimited by solid  
walls, or alternatively an open structure(para 147, P-39). The only indications, in writing or  
through the figures included in the 264 Patent, refer to the engine cradle having walls. Read as a  
whole, the 264 Patent leads the reader to only one conclusion: this Patent considers exclusively a  
walled engine cradle, not the alternative referred to by expert Breen. The Patent even extols the  
virtue of having a walled engine cradle because the right engine cradle wall 174 reflects radiant  
heat from engine 104 to assist minimizing heat dissipation from engine 104(para [0079]).  
[374] In fact, having a walled engine cradle makes sense when one considers the object of the  
Patent. The inventor constructs a frame, together with related structural elements, for the purpose  
of enhancing the ruggedness of the vehicle. It is therefore less than surprising that the specification  
 
Page: 145  
makes the engine cradle, together with the tunnel and the sub-frame, part of the frame assembly  
(para [0011]). The three elements are in this invention connected together; indeed, the upper  
column is extending upwardly from the engine cradle to connect with the forward support  
assemblywhich constitutes one half of the pyramidal brace assembly.  
[375] In an attempt to counter AC’s argument that its snowmobiles do not include the engine  
cradle of the 264 Patent, BRP argues that they must have an engine cradle since a snowmobile  
must hold an engine (Memorandum of fact and law, para 560). It seems that the argument boils  
down to arguing that where ever the engine is attached to the snowmobile becomes the engine  
cradle. The difficulty resides in the incontrovertible fact that this Patent limits itself to one variety:  
the cradle has walls. It is not merely an area where the engine will be mounted. The engine cradle  
of the 264 Patent is part of the frame as it is meant to add stiffness and rigidity. That is the engine  
cradle that is represented as being an essential element of a Patent, the purpose of which is to add  
stiffness and rigidity to the snowmobile and its frame.  
[376] BRP even argued that AC has used in the past the term engine cradleto describe the  
structure which received its engine (Memorandum of fact and law, paras 563-564). That is neither  
here nor there. P-69, the US 863 Patent, used in the cross-examination of Ken Fredrickson, speaks  
in terms of a space for receiving the engine. It is surely possible to refer to the area where an  
engine is mounted as an engine cradle. Mr. Breen readily conceded that the cradle could be an  
open structure. However, in order to qualify as the engine cradleof the 264 Patent, it must be the  
same type of engine cradle that is made an essential element of a Patent whose objects are those of  
the 264 Patent and whose description will correspond to the description found in the 264 Patent.  
Page: 146  
Both Mr. Girouard and Mr. Wubbolts referred to the cradle having walls. That corresponds to the  
notion presented in the 264 Patent.  
[377] All of the asserted claims of the 264 Patent require that there be an engine cradle. There  
is most probably a reason that can be inferred for that. If the engine cradle does not play a role in  
the rigidity of the vehicle, because it is only an area that receives the engine which is then mounted  
in that area, there is no need to have it included in the claims and featured prominently  
throughout the 264 Patent. The cradle has a purpose in fulfilling the utility of the invention of the  
264 Patent.  
[378] AC’s evidence is overwhelming in this case that its snowmobiles have their engines  
mounted in various ways without using the engine cradleof the 264 Patent. Indeed, that  
evidence was not countered by BRP other than claiming that there is no need to have walls to fall  
within the scope of the term engine cradleas part of the 264 Patent.  
[379] In my view, BRP has not discharged its burden on a balance of probabilities that the AC  
engines are located in an engine cradlein accordance with the 264 Patent. Actually, the evidence  
offered by AC is persuasive that its engines were mounted in an area that does not conform to the  
requirements for the engine cradleof the 264 Patent. That in my view is enough to dispose of the  
issue.  
[380] The construction of the 264 Patent did not rely on other instruments but the specification in  
order to come to the conclusion that the engine cradle in the 264 Patent must be walled. The Patent  
Page: 147  
speaks for itself. There is also, in the nature of corroborating evidence, exhibit D-14 that suggests  
strongly that the type of engine cradle, with walls, was added on purpose by BRP. To put it in the  
vernacular, BRP meant it. There is also the evidence of Messrs. Girouard and Wubbolts. But D-14,  
which is a BRP patent application for an engine cradle for a vehicle(CA 2350285), is merely  
confirmation that BRP considered a particular type of engine cradle, one with walls. The inventors  
would have been the same four inventors as those of the 264 Patent. The description of the engine  
cradle of the application has walls. Indeed, it has the advantage that the new walls present,  
compared to the prior art, as can be seen at the end of the application’s page 26:  
Because the frame assembly 84 is designed to absorb and transfer  
energy from the frame, the thickness of left engine cradle wall 393  
and right engine cradle wall 174 need not be as great as was required  
in the prior art construction (see, e.g., Fig. 4). Specifically, the  
construction of the engine cradle 56 in the prior art required a plate  
thickness of approximately 2.58 mm. With the frame assembly 84,  
however, the plate thickness for engine cradle 394 may be reduced  
to less than about 2.5 mm. More preferably, the thickness may be  
reduced to about 2.0 mm, which results in a significant weight  
savings.  
Furthermore, the figures in the application and in the 264 Patent are nearly identical where the  
engine cradle is featured or presented.  
[381] Both the application and the 264 Patent would have the same filing date and the same  
priority in US Patent 60/237, 384.  
[382] It seems to be undeniable that the invention includes an engine cradle that has walls.  
Having found that the area in which AC’s engines are mounted does not correspond to the engine  
cradleof the 264 Patent, and that the invention claimed by the inventors requires that the engine  
Page: 148  
cradle be walled, it follows that an essential element of the Patent is different. Accordingly, the  
Plaintiff has not established that its 264 Patent has been infringed.  
[383] Finally, had I had to consider more fully the terms sub-frameand upper-column, I  
would have found in favour of BRP. AC’s snowmobiles include both an upper column and a sub-  
frame as the terms are defined in the 264 Patent and understood by the person skilled in the art. In  
my view, the evidence offered by Mr. Breen is unassailable. There was nothing brought forth to  
jeopardize that conclusion. As for the “seat disposed on the tunnel”, because it is also important  
concerning the Rider Position Patents, a more fulsome analysis will be provided in the part of the  
reasons dealing with the infringement of the REV Patents.  
C.  
The Rider Forward Patents  
[384] The Plaintiff contends that all accused snowmobiles are rider forwardsnowmobiles. This  
relates to the radical evolution vehicle (REV) which presents a different configuration for  
snowmobiles. The new configuration brings the rider forward on the straddle seat, closer to the  
gravity center of the vehicle; BRP’s theory appears to be that a number of measurements can be  
made of the rider relative to the snowmobile that will reflect the configuration of the snowmobile.  
[385] BRP asserts repeatedly that the invention is the re-designed snowmobile that is needed in  
order for the rider to sit in a forward position, compared to the traditional snowmobile. The three  
Patents-in-suit all offer different measurements that would reflect a new configuration of the  
snowmobile being the subject of the three Patents.  
 
Page: 149  
(1)  
The 106 Patent  
[386] Claims 1, 7, 8, 27, 28 and 77 were asserted originally.  
[387] Claims 1, 7 and 8 are concerned with the centers of gravity of the snowmobile and that of  
the snowmobile with rider. Once these have been established, there are measurements of the  
horizontal distance that are taken between the two centers of gravity. They are in a cascading way  
from 0 to 14 cm, 2 to 12 cm and 4 to 10 cm, all inclusive.  
[388] Claims 27 and 28 are concerned with the distance between the forward-most drive axle and  
the center of gravity of the snowmobile’s rider (35 to 55 cm and 37 to 47 cm respectively). Claim  
77 refers to the angle created by a line passing through the center of gravity of the snowmobile  
with rider and the center of gravity of the rider alone. Where that line intersects with the  
horizontal, the claim requires that that angle be within a specific range of 45º to 75º.  
[389] I note that claims 8 and 28 would not cover all of the AC snowmobiles accused in this  
case, as some groups of accused snowmobiles, as organized by expert Larson, would not be  
infringing on the basis of these measurements. Thus, some measurements capture some AC  
models while the same measurements would not capture others. For instance, some AC models  
were not captured if the distance between centers of gravity is narrower than a range of 2 to 12 cm.  
In the end, they were not asserted anymore.  
 
Page: 150  
(2)  
The 813 Patent  
[390] This time, it is claims 37, 38, 48 and 73 that are asserted in the end. Claims 39 and 49 are  
not in play anymore; they would not have covered all of the accused snowmobiles as some  
groupings would not be infringing on the measurements.  
[391] In the case of the 813 Patent, there are three positions that are of importance: the seat  
position, the footrest position and the steering position. Other than offering angles corresponding  
to lines drawn through various positions, the 813 Patent is a close parent of the 106 Patent: the  
disclosures are virtually identical and both Patents define the position of a rider on a new  
snowmobile configured to have the rider sitting forward of the position a rider would be sitting in  
when on a more traditional snowmobile, before the REV.  
[392] Independent claim 9 identifies 3 angles, and these 3 angles have between them a specific  
relationship. Angle α is determined at the intersection of a line passing through the seat position  
and the steering position and a line passing through the seat position and the footrest position.  
Angle β is determined at the intersection of a line passing through the footrest position and the seat  
position and the line passing through the footrest position and the steering position. The third  
angle, γ, is formed at the intersection of a line passing through the footrest position and the  
steering position and the line passing through the steering position and the seat position. These  
three angles have the following strict relationship among them: Angle α ≥ Angle β ≥ Angle γ.  
 
Page: 151  
[393] Claims 37 and 38 depend on claim 9. Thus, the claims include the limitations of claim 9;  
they also include distances between two centers of gravity. These claims require that be  
determined the center of gravity of the snowmobile and the center of gravity of the snowmobile  
and its rider. There can then be measured the distance between the two centers of gravity which  
must be, in the case of claim 37, between 0 and 14 cm (inclusive), and between 2 and 12 cm  
(inclusive) in the case of claim 38. The following claims, not asserted here, would have limited the  
distance even more.  
[394] Claim 48 is dependent on claims 46 and 9. In effect, it introduces a different measurement  
than those asserted in claims 37 and 38, but that new measurement is itself a further limitation of  
claim 9. This time, it is the distance measured between the forward-most drive track axle and the  
center of gravity of the rider. Claim 48 calls for the distance to be between 35 and 55 cm  
(inclusive). Claim 49, which is not asserted in the end, would have the distance as being between  
37 and 47 cm (inclusive).  
[395] Finally, claim 73 depends on claims 72 and 9. Claim 72 compares the center of gravity of  
the snowmobile and its rider, with the center of gravity of the rider. Once these two centers of  
gravity have been determined, the line that passes through the two points intersects with horizontal  
to form an angle. According to the Patent that angle must be between 45º and 75º (inclusive) for  
the snowmobile to infringe on the monopoly associated with the new configuration.  
Page: 152  
(3)  
The 964 Patent  
[396] There are a certain number of claims that were asserted in this case: they are claims 1, 4, 6,  
8, 9, 13, 15, 16, 20, 24, 26, 27, 35, 37, 40, 42 and 48 (out of a total of 49 claims). In the end,  
claims 1, 4, 6, 8, 13, 15, 16, 20, 24, 26, 27, 35, 37, 40, 42, 48 were asserted. A quick summary of  
the claims may facilitate the understanding of issues.  
[397] The 964 Patent is entitled Snowmobile with Active Rider Positioning. It is concerned  
with the hips, knees and angles of a rider once positioned on the reconfigured snowmobile, the  
knees being disposed in front of the ankles and below the hips. Instead of sitting back, like  
would be the case with more traditional snowmobiles (figure 1 of 964 Patent), the new  
configuration puts the rider in a different position.  
[398] Claims 1, 4, 37 and 40 address the position of the hips compared to the knees: the hips are  
above the knees where a standard rider having the dimensions and weight of a 50-percentile  
human male is used as the ruler. Claim 4 requires that the hips be above the knees by a vertical  
distance of between 0 and 20 cm.  
[399] Claim 40, which requires that the vertical distance between the hips and the knees be  
between 0 and 20 cm, has further limitation that the ankles of the standard rider are situated behind  
the knees.  
 
Page: 153  
[400] Claims 6 and 42 put the hips of the rider behind the ankles. In claim 6, the horizontal  
distance between the two is between 5 and 40 cm. Claim 42, which is also concerned with the  
ankles of the rider being behind his knees, also requires that the horizontal distance between hips  
and ankles be between 5 and 40 cm.  
[401] Claim 8, an independent claim, requires that the ankles of the standard rider are behind the  
knees. Other claims, not asserted here, provide for cascading measurements of the horizontal  
distance between the two.  
[402] Claim 13 is dependent on claim 8, which speaks of the ankles being behind the knees, with  
the added limitation that the knees are disposed below the steering position by a vertical distance  
of at least 25 cm. Similarly, claim 24, which is dependent on claim 1 which requires that the hips  
be above the knees, adds the further limitation that the knees are disposed below the steering  
position by a vertical distance of at least 25 cm.  
[403] Claims 15, 16, 26 and 27 all deal with the distance between the ankles and the steering  
position. Claims 15 and 16 are dependent on independent claim 8, which is concerned with the  
position of the ankles relative to the knees, and they require that the ankles be behind the steering  
position by a horizontal distance of between 5 and 50 cm in the case of claim 15, and at least 15  
cm in the case of claim 16. Claims 26 and 27 are dependent on independent claim 1, which is  
concerned with the position of the hips that are disposed above the knees, and they require that the  
ankles be behind the steering position by a horizontal distance of between 5 and 50 cm in the case  
of claim 25, and at least 15 cm in the case of claim 26.  
Page: 154  
[404] Claims 20, 35 and 48 address a different measurement. This time, it is the relationship  
between the steering position which must be forward of a forward most position of the footrest.  
Claim 35 combines that limitation with the measurements stemming from independent claim 1,  
which requires that the hips be above the knees, and other limitations (hips relative to steering  
position, hips behind ankles, knees below steering position, knees above ankles, knees behind  
steering position). Claim 48 does the same thing with the measurements stemming from  
independent claim 8, which requires that the rider’s ankles be behind the knees.  
[405] In fact, when coupled with other measurements, there would appear to be a rather large  
number of possible permutations. For instance, claims 15 and 16, though concerned ostensibly  
with the horizontal distance between the ankles and the steering position, claim a snowmobile  
constructed and arranged also in accordance with claims 8 to 12 which are concerned with ankles  
being behind the knees by various horizontal distances.  
(4)  
Seat disposed on the tunnel  
[406] As with the 264 Patent, AC contends that its snowmobiles do not infringe because an  
essential element of the claims is not part of the accused snowmobiles. The structural element in  
dispute is the presence of a seat disposed on the tunnel.  
[407] The snowmobiles that were inspected by BRP, a total of 17, all had seats, but they were not  
disposed on the tunnel, according to AC. The Defendants argue that their seats are at least in part  
mounted to the gas tank.  
 
Page: 155  
[408] As shown in the section of the reasons for Judgment addressing claim construction, once  
the requirement of having a seat disposed on the tunnel is considered in context, it cannot be given  
the construction offered by AC. There is no indication that the words disposed oncan be limited  
to the seat being mounted directly on the tunnel. The same words used elsewhere in the Patents  
(disposed on) cannot have that restrictive meaning and no reason was given why that should be  
the case for the seat.  
[409] On the contrary, the words disposed onrefer to the seat being connected to and above the  
tunnel, without the requirement that it be directly on the tunnel without anything in between, some  
intervening component.  
[410] Accordingly, the seats on the accused snowmobiles are disposed on the tunnel as the term  
is understood in the Patents.  
(5)  
The measurements  
[411] In order to establish that AC’s snowmobiles infringed on the monopoly conferred to BRP  
through the asserted claims of the three Patents, the Plaintiff had to measure the snowmobiles  
produced by AC to ascertain whether they fit within the measurements asserted by BRP as  
reflecting its inventions. According to the evidence led at trial, there are 378 models. Such  
endeavour may be impossible. It would certainly have been costly.  
[412] It is surprising that the Defendants were incapable of supplying computer-aided designs  
(CAD) for the vast majority of the snowmobiles that have been produced. The software is  
 
Page: 156  
commonly used in the design of products. In an answer to an undertaking, AC confirmed that  
whatever CAD it has does not include drawings with or without model (question 65 delivered on  
September 11, 2014). This also confirms the technical limitations.  
[413] The lack of a tool that could have been of significant assistance to establish at a reasonable  
cost whether the snowmobiles produced by AC infringed the measurements of BRP Patents forced  
the Plaintiff to resort to different ways of establishing if snowmobiles produced by AC were in  
violation.  
[414] The evidence in this case shows that AC has had the capacity to measure the center of  
gravity since at least as early as 2000 or 2001, according to an answer to undertakings (question  
168, delivered on September 11, 2014). There is also ample evidence that it is common in the  
industry to check-outthe competition. Mr. Halvorson identified a BRP snowmobile in a  
photograph showing it being dismantled. There is also the clear evidence that AC felt there was a  
need to stop the REVmomentum(P-48). Something changed in the snowmobile industry with  
the introduction of the REV. Indeed, the Court was persuaded that the new configuration resulted  
in significant media coverage and commercial success for the Plaintiff (P-32). It cannot be denied  
that something newwas noticed. I note the following comments, among others, in the Snow  
Goer of March 2002, where in an article entitled Staff Report - A New REVolution:  
With the new REV chassis, Ski-Doo engineers broke out the  
ergonomics box, which dictates where and how a driver sits. For  
years, snowmobile riders have had their butts seated over the rear  
suspension’s rear arm, their legs stretched forward and their feet in  
angled foot wells.  
Page: 157  
In the Snow Tech issue of April 2002, in an article bearing the title 2002 Ski-Doo MXZ  
REVolution (Prototype) – Do you know what it’s like to start a Revolution (sic)? Ski-Doo does,  
one can read:  
Riding the REV, one becomes even more aware of how  
different this machine is. With the rider positioned 12” forward, the  
feeling of weight distribution and body positioning is more like a  
dirt bike than ever before. You can pivot your weight on the  
floorboards much like balancing on the foot pegs of a dirt bike.  
Instead of your weight being carried primarily by the rear arm of the  
rear suspension, you can now lean fore and aft, distributing your  
weight across the front suspension, front arm and rear arms of the  
rear skid.  
The REV projects a nimble sports car feel, much like a mid-  
engine Porsche. The centered mass and lighter overall weight,  
combined with the far-forward riding position, make the sled agile,  
nimble and quick reacting. It feels like a shorter vehicle (the sports  
car feel) with the rider this far forward. The basic concept is simple  
and valid: the rider is the single heaviest component of the  
machine/rider combination. Moving the rider 12” forward has a far  
greater affect on centering the mass and reducing the moment of  
inertia that any component relocation or re-design.  
Sitting all the way back on the seat on traditional  
snowmobiles causes a few things to happen that the REV eliminates;  
on normalmachines, with the rider sitting all the way back on the  
seat, if you want or need to stand up for some bumps, you’re  
basically forced to pull your body weight up off the seat with your  
arms and upper body, effectively bench-pressing your body weight.  
This causes upper body fatigue. On the REV, your feet are not out in  
front of you but underneath you, more like a dirt bike (ask a dirt bike  
rider what happens to the control of their scoot if they sit all the way  
back on the seat!). If you need to stand up to take bumps on the  
REV, your legs do all the work, and your legs are far stronger on  
most people than your upper body.  
The same goes for bumps. Sitting all the way to the rear on  
the seat can allow some wicked bumps to be taken by your stronger  
legs. Rarely does your back ever take a direct hit. By sitting so far  
forward, the rider is not exposed to the extreme motion at the end of  
the lever, so the amount of energy being transmitted to your legs is  
less than what your back used to see. Back in the old days (1960s)  
when there really was no suspension under snowmobiles, riders  
Page: 158  
always had their legs underneath them because this was the only  
suspension they had!  
[415] The evidence is plentiful about the significant breakthrough the REV represented in 2002:  
it was due to improved ergonomics and centralized mass generated by the new configuration  
(Motorhead The New Tangible Fall 2002; Supertrax International, December 2003, Ski-Doo  
MX-Z Renegade Adjusting Expectations Think the REV Renegade is Just Hype? Think  
Again).  
[416] The industry noted. In the March 2003 issue of Supertrax International, the magazine was  
reporting on a rumor that Polaris, another major player in the industry with Yamaha, would share  
a REV-like new platform, although the magazine noted that the rumor did not materialize at the  
events which were rumored to have been selected. The same issue reported on an AC’s Open Class  
Firecat that would have the driver’s seating position much forward than production Firecats.  
[417] Not only was the new configuration presented as having changed the sport and ushered in  
a new era of snowmobile design and thinking(Snow Goer, December 2003, Power Hungry), but  
there is evidence of the commercial success of the REV. In American Snowmobiler of November  
2004 (Redesigned Mach Z bet to Blister the Lakes), the magazine states that (t)he REV blind-  
sided the competition with its radical rider-forward position, and other makers are swallowing hard  
and running fast to catch up. In Supertrax International of March 2005 (Sharpening the Machete –  
More Ammo to stretch the Lead), the magazine reports that “(h)ere’s what really underscores how  
slick the REV’s arrival was: it has become the driving force influencing brand switching in 2005.  
The REV has been good enough to pry many butts off beloved marques and drag wallets out of  
Page: 159  
pockets in the pursuit of trying something new.The Snowmobile BC Magazine of Spring 2005  
reported (Ski-Doo 2006, All REV’d Up”) that “(d)espite industry sales dropping significantly in  
2005, Ski-Doo sales remained constant with 2004 levels this year. This is no doubt thanks to the  
incredible success of the innovative REV platform. Other OEMs have been clamoring to make  
certain their lineup has their mass centralized, their riders forward and more upright and even  
some snowmobiles sporting the 16" wide rubber.”  
[418] The Court is therefore persuaded by the evidence that the Plaintiff, BRP, developed a  
snowmobile, the result of such development being that the rider of the snowmobile is pushed  
forward by the configuration of the machine. In my view, the evidence is overwhelming (P-33, the  
Competition’s reaction). The question remains however to determine that all, or some, of AC’s  
snowmobiles infringed on the measurements of the Patents that were granted. That of course does  
not assure the validity of the Patents.  
[419] Although the Patents announce that they are concerned with the overall design and  
construction of a snowmobile, and that the invention improves on the conventional design by  
repositioning the rider and redesigning the layout of the vehicle, one is hard pressed to find in the  
claims, or in the disclosure for that matter, any indication how the snowmobile is to be constructed  
or how the layout is redesigned.  
[420] The reader is treated to an exposé of what are the most important elements of a  
snowmobile, but the reader will look in vain for the information to create the new configuration,  
the new design, the new layout. Patents 106 and 813 concede that an exhaustive description of  
Page: 160  
each and every component is not provided, only a description of those elements required for an  
understanding of the present invention.(p. 7). That is overstating the case. At best, the elements  
may need to be re-organized are identified without any indication of what needs to be done for the  
new configuration to emerge.  
[421] The inventors present instead various measurements which, one has to assume, would  
reflect the position taken by the rider. That too is less than clear.  
[422] For the purpose of the infringement analysis, I accept that if measurements of the AC  
accused snowmobiles fall within the measurements of the asserted claims, it will be proven that  
the measurements infringe on the measurements of the asserted claims.  
[423] The Plaintiff, BRP, used the services of two experts for the purpose of measuring AC’s  
snowmobiles. Robert Larson is a senior Managing Engineer with Exponent Failure Analysis  
Associates [Exponent], a division of Exponent Inc. of Phoenix, Arizona. Exponent is an  
engineering and scientific consulting company covering over 90 disciplines, with a staff of some  
900 composed of engineers, physicians and regulatory consultants.  
[424] As already indicated, Mr. Larson is a mechanical engineer who studied at the University of  
Michigan where he earned a Bachelor of Science and a Master of Science in Mechanical  
Engineering. It is not disputed that he is an expert in Mechanical engineering, with expertise in  
measuring static and dynamic parameters of recreational vehicles. That includes overall geometry,  
Page: 161  
center-of-gravity location, moments of inertia, suspension properties and handling characteristics  
(P-41).  
[425] The other expert retained by the Plaintiff is Dr. Christine Raasch, also an employee of  
Exponent where she is a Principal. She is a mechanical engineer, having earned a Doctor of  
Philosophy (Ph.D.) degree in Mechanical Engineering at Stanford University. She is an expert and  
has published peer-reviewed papers in the areas of biomechanics of human movement and injury,  
vehicle occupant dynamics and kinematics, occupant restraint systems as well as anthropomorphic  
test device (ATD) design, calibration and biofidelity. She is an expert in her field (P-43). In  
particular, Dr. Raasch has overseen testing utilizing a broad range of ATDs, including the Hybrid  
III 50th-percentile male, the 5th-percentile male and the 95th-percentile male. She has assembled,  
adjusted, repaired and performed calibration tests on ATDs. Both have impressive resumes which  
are directly relevant. They were also very impressive witnesses.  
[426] Initially, Mr. Larson performed measurements on two AC snowmobiles on March 1 and  
February 28, 2012. The measured snowmobiles were:  
the 2012 M800 Sno Pro (153")  
the 2012 F800 LXR.  
[427] Between July 21, 2014 and August 14, 2014, measurements were performed on twelve  
more AC snowmobiles:  
the 2012 M800 Sno Pro (162")  
the 2012 F1100 LXR  
Page: 162  
the 2014 ZR 7000 LXR  
the 2013 XF 800 Sno Pro Limited  
the 2010 Sno Pro 500  
the 2008 Sno Pro 600  
the 2012 Sno Pro 600  
the 2007 Jaguar Z1  
the 2011 F570  
the 2007 F8 Sno Pro  
the 2008 Arctic Cat TZ1 LXR  
the 2013 Bearcat 570 XT.  
[428] Three more models were to be measured during the same period. However only the  
position of the centers of gravity were measured with respect to these three AC snowmobiles:  
the 2007 F1000 Sno Pro  
the 2014 F570  
the 2009 Bearcat Z1 XT.  
[429] In order to perform measurements that would be compared, it was deemed necessary to  
follow a protocol which would reflect the three Patents-in-suit (P-42, at tabs 3 and 11). The  
Protocol for the measurements of the first two Arctic Cat snowmobiles (Models F800 and M800)  
was more rudimentary. The rider is the standard rider with the dimensions of a 50th-percentile  
human male, dressed in snowmobile clothing. The position on the snowmobile is that of the rider  
being seated in a biomechanically neutral position with feet disposed on the footrest and the hands  
disposed on the steering device. These positions correspond to the footrest position and the  
Page: 163  
steering position. The steering, footrest and seat positions are said to be found in the following  
fashion at exhibit P-42, tab 3:  
-
The Steering position is determined by placing the hands of  
the standard rider described above, on the steering device in normal  
operating position. The steering position will be the intersection of  
the center of the palm of the hands of the standard rider and the  
steering device.  
-
The Footrest position is in the location of the arch of the foot  
of the rider when his feet are placed in normal operating position on  
the vehicle. Under normal operating conditions, the rider’s feet will  
rest on a forward portion of the sideboards.  
-
The Seat position is the point at which the weight of rider is  
exerted on the seat of the snowmobile while scaled 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, and with the snowmobile  
being steered straight and headed straight on flat terrain and being in  
running conditions. The seat position may be determined by placing  
the standard rider on the snowmobile in the biologically neutral  
position and drawing a line from his shoulder through his hip. The  
intersection of that line with the seat may be considered to be the  
seat position 130.  
[430] As was seen from the examination of the claims asserted in the end, the claims rely on the  
centers of gravity (snowmobile, rider and snowmobile with rider) and the three positions. There is  
also a need to rely on one rider, that rider being according to the Patents the 50th-percentile human  
male. But what general position should be taken by that person in order to determine the steering,  
footrest and seating positions?  
[431] The 106 and 813 Patents speak of a biomechanically neutral position, while the 964 Patent  
is content with the standard position of a rider. The Exponent protocol defines biomechanically  
neutral positionas do the 106 and 813 Patents:  
Page: 164  
-
A biomechanically neutral position is one wherein each of  
the opposing muscles of the major supporting muscle groups that  
maintain the rider in his position are in equilibrium. A  
biomechanically neutral position generally corresponds to the  
position of the standard rider as shown in the figures of the  
Measurements section below (see page 5 and following document).  
[432] The more refined protocol (P-42, tab 11) provides for a detailed series of steps taken to  
position a 50th-percentile male ATD, including steps taken to identify precisely the joints (ankles,  
knees, hips) that will be the subject of measurements. The measurements were made in 2012 with  
a laser system and in 2014 using photogrammetry. As for the centers-of-gravity, the experts were  
careful to replicate the conditions (including the drop in height caused by the weight of the rider)  
such that where the platform on which the snowmobile (with and without rider) was tilted to  
calculate the various centers-of-gravity, the expert was able to have a high degree of comfort that  
the measurements were accurate.  
[433] It is noteworthy that the use of an ATD allowed for the tightening of all accessible joints  
(so that the ATD can remain rigid, even where the platform is tilted), as well as to affix the hands  
to the handlebar grips with zip-ties and place targets at the most appropriate locations identifying  
the wrist, elbow, shoulder, head and foot positions. Were installed target brackets for the hip and  
knee locations, as the ankle location was also marked.  
[434] The taking of the various measurements was thoroughly documented (P-42, tabs 11, 12 and  
13), with the full complement of the measurements and numerous photographs. The record is  
voluminous. This was an impressive display. One was left with the strong impression that these  
experts had nothing to hide and had excellent expertise.  
Page: 165  
[435] The measurements of the 17 snowmobiles showed that they all fall within some asserted  
ranges of the 106, 813 and 964 Patents, with the exceptions such as the 2008 TZ1 LXR which does  
not fall within asserted claim 9 of the 813 Patent (Angles α ≥ β ≥ γ, the angles relating to the  
various seat, steering and footrest positions). However, the 2008 TZ1 LXR snowmobile infringes  
other claims of the Patents-in-suit.  
[436] The Defendants challenge the allegations of infringement on two fronts. They contend that  
AC’s snowmobiles do not meet one of the essential elements of the Patents in that they do not  
have a straddle seat disposed on the tunnel. The Court has already disposed of that contention.  
[437] AC also took issue with the way the measurements raising a number of arguments. Thus,  
the Defendants argue that the measurements should not have been taken using an ATD: the Patents  
speak of riders and they mean human riders. On numerous occasions, reference was made to  
different riders having varying riding styles. In my view, this type of criticism is misplaced.  
[438] These Patents, for he who wants to understand them, are framed around the proposition  
that the rider of the new snowmobile would naturally take a riding posture that would be different  
from that on the conventional snowmobile. The 106 and 813 Patents dedicate many paragraphs of  
their disclosure to compare figures 1 and 2 which represent the prior art and the new snowmobile.  
As part of the comparison, the inventor shows the different positioning of a standard rider, one  
who is in a biomechanically neutral position on the seat. Because of the new configuration of a  
snowmobile, the position taken by the standard rider changes. The idea is therefore to use the 50th-  
percentile United States human male to determine what that new position is through a series of  
Page: 166  
measurements intended to capture that new position. Mr. Breen, the expert retained by BRP, was  
right to express the view that the position of an actual rider is irrelevant to the issue of  
infringement (cross-examination, March 24th, 2015, at p. 148-149). If a rider decides to ride  
aggressively by coming even closer to the steering position or, conversely, he sits back on his seat  
thus exerting pressure on his arms and legs, it does not matter. This would not constitute the  
biomechanically neutral position as defined in the 106 and 813 Patents, or the standard position of  
the 964 Patent. It is essential to keep in mind that the Patents seek to define a new configuration  
through the measurements of the 50th-percentile human male. By taking the standard position, and  
by using as a ruler the 50th-percentile, the measurements seek to establish the monopoly asserted  
by the inventor. What actual riders will do in reality while driving on trails, climbing mountains or  
racing each other is less than relevant.  
[439] I fail to see why using an ATD should to be frowned upon. Again, what is to be assessed is  
the standard position of a rider. There are indeed advantages to using an ATD. An ATD can be  
held firmly in position, including the tightening of the joints such that the ATD remains rigid. It is  
also to be used for the measurement of the center-of-gravity of the system(snowmobile with  
rider) which requires that the platform on which the snowmobile is attached, with the rider on it,  
be tilted. That makes the taking of measurements repeatable.  
[440] AC argued in its memorandum of fact and law that Dr. Raasch admits that there is not one  
distinct biomechanically neutral position for a 50th-percentile rider. While it is true that Dr.  
Raasch agreed generally with the question asked during her cross-examination (March 25, 2015, at  
p. 189), the matter takes a different texture when considered in context. The exchange was in  
Page: 167  
relation to different snowmobiles having a different geometry, a different design. It is worth  
quoting in its entirety the exchange between counsel and the witness:  
COUNSEL: Well there’s a different snowmobile and that will  
change the posture of the rider; correct?  
DR. RAASCH: Right. I think that we -- we all agree I think  
that it has to potentially -- even a change in the seat height is going -  
- could potentially produce changes in leg angles. Even if the rider  
wanted to wanted to sit voluntarily the same way, there would be a  
physical change by the geometric constraints.  
COUNSEL: Okay. Change in geometry, change in the design  
components and dimensions of the snowmobile. Like shape and  
design of the seat and the handlebars and so on is going to change  
the posture as well; correct?  
DR. RAASCH: Yes.  
COUNSEL: So there is not one distinct biomechanically  
neutral position for a 50th percentile. Is that fair?  
DR. RAASCH: Yes, I agree with that. I think that we -- the  
way that we felt that it needed to be defined that it could not be a  
single position because it needed to take into account variations in  
geometry. And in order to do that, we had to -- for example, we had  
to design our protocol to allow such variation.  
In other words, the geometry of the snowmobile will affect the standard position, the  
biomechanically neutral position that will be taken by the rider, whether he is the 5th, 50th or 95th  
percentile. It is exactly the result that is expected. Similarly, it should not be surprising if changes  
to the position of the ATD result in variations in measurements. Once again, that is to be expected.  
That is why it was so important that the measurements be so thoroughly documented. Dr. Grewal,  
the expert retained by AC, commented in his rebuttal report (D-123) that (t)he tables above show  
that moving the ATD either forward or rearward from the position that Exponent used resulted in  
meaningfull variation for certain of the measured values(para 51). No one should dispute the  
Page: 168  
opinion of Dr. Grewal when he says that (i)t is therefore my opinion that ATD placement has an  
effect on whether a snowmobile will be found to fall within the claim limitations of the BRP  
patents(para 53). That is what is expected and why the measurements must be taken rigorously,  
with the assistance of a rider or an ATD that conforms with the 50th-percentile United States male  
positioned as a standard rider in a standard position.  
[441] It is true that figures 19 and 20 of the 106 and 813 Patents show the dimensions of a 50th-  
percentile human male that are remarkably mistaken. There is no need to be a person of skill to  
reckon that the figures are largely useless. It is rather ironic that an argument was presented that  
Exponent did not use those dimensions in order to compare the results. The Defendant’s  
memorandum of fact and law goes on to argue that (a)s such Exponent has no scientific basis to  
say that the ATD used for its experiments has the same dimensions as the standard rider of the  
patent(memorandum of fact and law / re infringement, para 420).  
[442] The truth of the matter is that it would have been impossible to find an ATD with  
dimensions that are so obviously mistaken. The person of skill would have reached that conclusion  
without hesitation and would have resorted to the ATD that fits the 50th-percentile, which is what  
Mr. Larson and Dr. Raasch did. David VAVER wrote in Intellectual Property Law, 2nd Ed, Irwin  
Law, 2011[Vaver]:  
All is well only if the skilled worker would readily spot the mistake  
or omission and could quickly connect it by using common general  
knowledge and the rest of the patent, but without prolonged research  
inquiry or experiment or inventiveness.  
(Pages 342-343)  
Page: 169  
[443] Dr. Grewal, for the Defendants, argues that an ATD cannot simulate the active riding of a  
human on a snowmobile. He made that criticism in his first report (D-121, para 125) as well as in  
his rebuttal report (D-123, para 11). I would put this concern in the same category as the one  
concerning the fact that a snowmobile is driven by a human being, not an ATD. It does not matter  
that a snowmobile is requiring active riding. The Patents are only concerned with the configuration  
of the new snowmobile which brings about a number of measurements with respect to a 50th-  
percentile United States male sitting on the snowmobile in a biomechanically neutral position or in  
a standard position. It does not matter that, per force, a rider will change position as he operates the  
snowmobile in various conditions. It suffices that the ATD be positioned on the measured  
snowmobiles so that it corresponds to the rider’s position in the Patents.  
[444] I read, and I re-read, the reports produced by Dr. Grewal; I read twice his testimony before  
the Court. At the end of the day, this is no more than a valiant effort to find fault with the way the  
measurements were performed by Mr. Larson and Dr. Raasch. If there were mistakes in the  
methodology, one would have to expect that this results in material changes, such that measured  
snowmobiles, which fall within the ranges of the Patents when measured by Mr. Larson and Dr.  
Raasch, would in fact be shown to fall outside the range if measured by Dr. Grewal according to a  
proper and better methodology.  
[445] To his credit, Dr. Grewal provides the results in his rebuttal report (D-123) of his own  
measurements. Five snowmobiles already measured by Mr. Larson were measured by Dr. Grewal  
with an ATD seated on the snowmobiles in different positions presented as mid, forwardand  
rearward(D-123, para 47). It is not easy to understand why that was done because, very clearly  
Page: 170  
from the photographs presented, the forwardand rearwardpositions cannot even approach the  
biomechanically neutral position/standard position of the Patents-in-suit. The mid-position suffices  
as an approximation.  
[446] Nevertheless, none of the measurements taken of the five exemplars already measured by  
Mr. Larson falls outside the numerical value (D-123, para 49, Exhibit F). The only negative  
conclusions drawn by Dr. Grewal are that (t)he tables above show that moving the ATD either  
forward or rearward from the position that Exponent used resulted in meaningful variation for  
certain of the measured values(D-123, para 51). That is not surprising. Indeed that is expected.  
That is why the Patents require that the rider be in a biomechanically neutral position/standard  
position, which corresponds more or less to the mid” position in Dr. Grewal’s experiment.  
[447] Dr. Grewal also reported, at para 52, on a trend he noticed. He found that the distance  
between the forward most drive track axle and the rider’s center of gravity was outside the scope  
of limitation of some claims of the 106 and 813 Patents. But that observation is valid only where  
the ATD is in the forward position, a position which is far removed from what the Patents teach.  
When the ATD is placed in the position used by Mr. Larson, which corresponds much better, in  
my estimation, to the teaching of the Patents, the results are reported very fairly by Dr. Grewal as  
being:  
52.  
…However, when the ATD was in a position that mimicked  
Exponent’s ATD placement, the measured value was within the  
limitations of these claims or within the limitation of the claims  
where considering the margin of error.  
(D-123)  
Page: 171  
[448] The evidence concerning the exemplars used by BRP is convincing. As in Whirlpool, the  
Defendants chose to sit back to some extent and argue that the Plaintiff has not made sufficient  
proof. However, where 5 of the exemplars are measured by AC’s expert, his measurements  
confirm that they fall within the measurements of the asserted claims. I have examined carefully  
BRP’s evidence concerning the measurements relative to the exemplars. It is abundant and  
persuasive. It is even corroborated by the experiment conducted by Dr. Grewal. When the  
evidence of BRP is put in the balance with that which was offered by AC, BRP’s evidence is  
overwhelming. The evidence of Mr. Larson was cogent and his reports are clear and fully  
documented. His expertise in the taking of measurements came through his reports and his  
testimony. He was assisted by Dr. Raasch, an expert in biomechanics practice, and in particular  
with ATDs. The Court therefore accepts BRP’s contention that the snowmobiles measured fall  
within the asserted claims’ limitations of the three Patents-in-suit.  
[449] However, this conclusion does not dispose completely of the issue of infringement as BRP  
has identified 378 models of AC’s snowmobiles that would be in violation of one or more claims,  
but measured only 17.  
[450] BRP led evidence involving Mr. Larson on how representative the measurements taken are  
of the whole population of accused models. The Plaintiff contends that it would have been  
relatively easy to perform measurements had CADs of AC’s snowmobiles been made available as  
would be expected, says BRP, from as sophisticated a company as AC. Adequate CADs were not  
produced.  
Page: 172  
[451] The Plaintiff had to resort to an alternative method to seek to prove its case with respect to  
the accused 378 models. The basic assumption is that the 378 models are not all different: models  
can therefore be grouped in view of similarities seen between accused models. Mr. Larson offered  
9 such groupings.  
[452] Mr. Larson gathered a large amount of documentation in an effort to identify the  
characteristics of ACs snowmobiles. He was able to use among considerable material  
specification sheets, information originating from Arctic Cat’s brochures, AC’s own website.  
There were obvious similarities. From that material, he was able to group at first by chassis type.  
As he testified, Mr. Larson was attempting to group snowmobiles by design. Thus, he considered  
the chassis data which would have very similar track width, track length, overall width, overall  
length and ski stance. As he testified in his initial report (P-42), (f)rom this analysis it became  
clear that there are well-defined groups of snowmobile models that share the same overall  
geometry” (para 19). These 9 groupings are listed at paragraph 20 of Mr. Larson’s report (P-42):  
(a)  
(b)  
(c)  
M- model snowmobiles with 153 inch track length, model  
years 2012-2015;  
M- model snowmobiles with 162 inch track length, model  
years 2012-2015;  
F- and ZR- model snowmobiles equipped with a ProCross  
chassis, model years 2012-2015;  
(d)  
(e)  
XF- model snowmobiles, model years 2012-2015;  
Race snowmobiles equipped with a Sno Pro chassis, model  
years 2008-2014;  
(f)  
Race snowmobiles equipped with a ProCross chassis, model  
years 2012 and later;  
(g)  
F5, F6, F8, F570, F1000 and Z1 Lynx 2000 model  
snowmobiles, model years 2007-2015;  
Page: 173  
(h)  
(i)  
T-series and Lynx 2000 LT model snowmobiles, Bearcat  
snowmobiles with 15 inch track width and EXT versions of  
F8 and Z1 model snowmobiles, model years 2008-2015;  
Bearcat snowmobiles with 20 inch track width, model years  
2009-2015.  
[453] According to Mr. Larson, (w)ithin each group all the models have the same chassis, and  
have the same or very similar track length, overall vehicle length and width(para 21). It was also  
provided as evidence a comparison of website images of various models. These images were  
overlaid. The results found at Appendix 6 of P-42 show remarkable similarities between models  
grouped according to similar characteristics. In a word, if one snowmobile in a group is shown to  
infringe on the measurements of the claim, the other snowmobiles in the same group would also be  
infringing given the similarities of models within the group.  
[454] As a way of further assessing the representativeness of the groupings, Mr. Larson  
considered whatever CADs had been made available by the Defendants (as indicated previously, a  
complete set of CADs were not provided but some, even partial ones, were available). He  
observed that those files that were provided illustrate the fact that the model variations within  
each chassis group share the vast majority of their components and have little in the way of  
differences of relevance to the issues of the case.(P-42, para 25) Indeed, according to Mr.  
Larson, AC had CAD files that, in fact, represent groups of models. There is a particular chassis  
and then different component assemblies can be used to create different models for a particular  
chassis. For instance, a different engine becomes a different model, but they both have the same  
chassis with the same basic configuration.  
Page: 174  
[455] Faced with what would appear to be powerful evidence, at least at first slush, AC chose to  
offer evidence that would not be reviewing the groupings in an extensive manner. After all, AC  
produced and sold the 378 models BRP accuses to infringe its monopoly. It should have been in a  
position to challenge directly the groupings presented by BRP.  
[456] Instead of that, AC called Mr. Mark Warner to testify, among other things, about the report  
prepared and filed by Mr. Larson. Mr. Warner, also an engineer, with a Master of Science from  
Brigham Young University, is employed by Collision Safety Engineering. He is evidently an  
expert in collision safety as his curriculum vitae amply shows; he is also a snowmobile enthusiast.  
[457] In his rebuttal report (D-108), Mr. Warner claims difficulty in evaluating whether the  
Larson’s groupings are homogeneous. I was not persuaded. Again, the Defendants take the posture  
that they should sit back and challenge peripherally groupings that they are capable of reviewing  
with great precision. They have built the 378 models. They prefer to seek to raise doubts about the  
groupings made carefully, in spite of evidence that corroborates these same groupings.  
[458] Mr. Warner’s line of attack is to suggest that “it is not clear on what basis he grouped the  
snowmobiles at issue.(D-108, para 100). He raises a red-herring, where addressing the  
groupings, by suggesting that as noted in my October Report the BRP Patents do not identify any  
of these structural features of the snowmobiles of the proposed invention as being key to the  
rider’s position.” (para 104). At this stage, when we are not yet concerned with the validity of  
Patents, the focus should rather be whether the proposed groupings capture the accused models.  
Page: 175  
[459] He suggests that, given the populationof snowmobiles at issue, there would have been a  
need for many more exemplars used to establish the representativeness of exemplars compared to  
the population considered. However, he never seems to account for the analysis performed by Mr.  
Larson in populating the various groupings and validating that the models have actually the same  
chassis. The exercise was fully documented in the Larson reports. The statistical analysis  
suggested by Mr. Warner falls short of the mark. It is ironic that BRP would be faulted for not  
having purchased more AC snowmobiles to conduct more tests while AC chose not to conduct the  
same tests. At best, Mr. Darling, for AC, suggested that some of its published material is not  
always accurate, but without offering evidence as to how prevalent and significant that could be, or  
indicating what models are affected and to what extent. The issue is not so much to draw a  
negative inference against the Defendants as it is to note that in the balancing of evidence to assess  
where the balance of probabilities lies, AC makes general allegations concerning the groupings, is  
critical of some aspects, without even trying to test its own snowmobiles to show the deficiencies  
of the Larson method. On the other hand, BRP offers specific evidence, its groupings, that is not  
challenged with any particularity.  
[460] Both Dr. Grewal (D-123, para 71) and Mr. Warner (D-108, paras 109 to 111) were critical  
of the fact that Mr. Larson seemed to have neglected measuring the snowmobiles’ mass. Dr.  
Grewal spoke of the mass being conspicuously absent from the charts comparing other physical  
properties of all of the alleged infringing snowmobiles.Both Mr. Warner and Dr. Grewal noted  
that mass is an important factor in the centers-of-gravity measurements. As with other criticism  
however, the experts raised issues but that never went beyond than raising issuesin a less than  
conclusive way. It is as if that was an attempt to raise a doubt about the groupings. Without more,  
Page: 176  
there is a realistic chance that a doubt will ensue, but a reasonable doubt will not suffice in a civil  
matter. As Lord Denning famously said in Miller v Minister of Pensions, [1947] 2 All ER 372,  
(i)f the evidence is such that the tribunal can say: 'we think it more probable than not', the burden  
is discharged, but if the probabilities are equal it is not.The seriousness of the issue does not  
matter: the standard remains the same. Baroness Hale found that much in In Re B (Children)  
[2008] UKHL 35 where she said that (n)either the seriousness of the allegation nor the  
seriousness of the consequences should make any difference to the standard of proof to be applied  
in determining the facts…” (para 70).  
[461] Be that as it may, the matter was met head on by Mr. Larson in his reply report (P-113). In  
essence, Mr. Larson states that he did not act per incuriam, but rather after careful consideration.  
He chose not to use the weight in defining the groups (the weight would be featured in the  
measurements of the centers-of gravity in whatever grouping a model would be placed). Three  
reasons are given.  
[462] First, the weight is accounted for in creating the groupings by the size and the length of the  
snowmobile. Obviously, the groups reflect size and length. For instance, the snowmobiles falling  
in the mountaincategory end up in two different groups because of two different track lengths.  
[463] Second, there are different types of snowmobiles, with inherently varied weights:  
lightweight performance snowmobiles, multi-use snowmobiles and more rugged touring or utility  
snowmobiles. The groupings accounted for these varied weights.  
Page: 177  
[464] Third, the engine size was considered. However, most chassis offer a variety of engine  
sizes. Thus, intra-group pairs of measurements were conducted, using the smallest and largest  
options. These types of measurements, we learned in the previous report, show that they are  
similar. In the uncontradicted view of the expert, the engine size does not change in a significant  
way the analysis.  
[465] The 17 exemplars cover the 9 groups, as delineated by Mr. Larson. Some groupings saw  
more than one model selected to assess if the group would fall within the ranges of the asserted  
claims of Patents 106, 813 and 964.  
[466] In my opinion, the evidence offered by AC does not challenge effectively the evidence of  
how the groupings were arrived at by Mr. Larson. The general allegations made do not rise to the  
level of an effective challenge. As in Whirlpool, the evidence of infringement is not completely  
satisfactory as superior evidence would have been to have access to the CADs to establish  
infringement or the 378 models could have been measured; perhaps more than 17 exemplars could  
have been chosen to be more statistically significant. Nevertheless, when available the CADs  
confirmed some of the groupings, without exception. The weight of the reliable evidence is clearly  
on the side of the Plaintiff and the balance of probabilities favours BRP. Infringement of the  
measurements of the Patents-in-suit has been established to the Court’s satisfaction.  
[467] As a result, all of the measured models fall within the ranges of the following asserted  
claims:  
106 Patent: Claims 1, 7, 27 and 77  
Page: 178  
813 Patent: Claims 37, 38, 48 and 73  
964 Patent: Claims 1, 4, 6, 8, 13, 15, 16, 20, 24, 26, 27, 35, 37, 40, 42 and 48  
[468] BRP declares in its final submission relying on the last remaining asserted claims.  
However, there are limitations:  
106 Patent: Claim 8, except gr. 7  
Claim 28, except gr. 6 and 9  
813 Patent: Claim 9  
Claim 39 except gr. 7  
Claim 49 except gr.6 and 9  
964 Patent: Claim 9, except gr. 3 and 9  
[469] Given that the balance of probabilities, in view of the evidence led by BRP concerning the  
validity of the groupings of the 378 accused models which are found to be homogeneous, evidence  
which has not been answered by AC, falls in favour of the Plaintiff, it follows that the Court is  
satisfied that the 378 models infringe the measurements of the Patents-in-suit.  
[470] The examination of the infringement of the BRP Patents would be incomplete if BRP does  
not prove that AC sold snowmobiles in Canada between 2006 and 2014. That is not contested by  
AC.  
[471] During the hearing of this case, counsel for the Defendants very fairly confirms in open  
court that we are not contesting infringement by inducement and procurement of infringement by  
the dealers.” (transcripts, April 14, 2015, p. 143) As a result BRP’s written submissions on the  
subject did not require to be further asserted in open court. They were not addressed in AC’s  
Page: 179  
memorandum of fact and law. That concession has of course no bearing on the issues of  
infringement and validity which were debated at length during the trial.  
VI.  
Validity of Rider Position Patents  
[472] As with a large number of patent cases, the Court had to deal with a catalog of arguments  
concerning the validity of the REV Patents. It is not showing much insight to note that a number of  
measurements about AC’s snowmobiles may well fall within the measurements asserted by BRP  
in its Patents 106, 813 and 964, yet in order to be successful the Plaintiff must prevail once the  
validity of the various Patents is challenged. The measurements are one thing and the Patents’  
validity is another.  
[473] It is not disputed that a patent is presumed valid, which signals that the burden is on the  
Defendants to assert and prove invalidity. Subsection 43(2) of the Patent Act states:  
Validity of patent  
Validité  
43 (2) After the patent is  
43 (2) Une fois délivré, le  
issued, it shall, in the absence  
brevet est, sauf preuve  
of any evidence to the contrary, contraire, valide et acquis au  
be valid and avail the patentee breveté ou à ses représentants  
and the legal representatives of légaux pour la période  
the patentee for the term  
mentioned in section 44 or 45,  
whichever is applicable.  
mentionnée aux articles 44 ou  
45.  
Whether the presumptionis easy to overcome or not (Rubbermaid (Canada) Ltd. v Tucker  
Plastic Products Ltd. (1972), 8 CPR (2nd) 6) does not really matter since in civil cases the party  
must satisfy the Court on a balance of probabilities (F H v McDougall, 2008 SCC 53, [2008] 3  
 
Page: 180  
SCR 41, at para 40) [McDougall]. The quality of the evidence to meet the standard requires that  
“evidence must always be sufficiently clear, convincing and cogent” (McDougall, para 46, as  
recently re-asserted in Fairmont, para 36). It is the ultimate standard of balance of probabilities  
that must be satisfied by AC.  
[474] BRP has suggested on occasion that AC’s arguments on invalidity were not consistent  
between them. My view is that these arguments can hardly be treated as if they are watertight  
compartments. Nevertheless, it is perfectly permissible, as often seen, for arguments to be in the  
alternative. For instance, I can see nothing wrong with arguing obviousness and insufficiency. In  
Eli Lilly Canada Inc. v Apotex Inc., 2008 FC 142, 63 CPR (4th) 406, Justice Hughes wrote:  
[74] Thus, one must both advance the state of the art and disclose  
that advance in order to gain the patent monopoly. Failing to do so,  
thus invalidating the monopoly, can be in the form of one or more of  
several matters as such as, the “invention” was not new, or the so-  
called invention was “obvious” or the disclosure was “insufficient”  
or “what you disclosed doesn’t support the monopoly that you  
claim”.  
It is certainly possible for something to be invented but that has not been sufficiently disclosed or  
properly claimed such that the patent monopoly has to be invalidated.  
[475] An examination of each argument on invalidity is the usual way of proceeding. It remains  
that, in the end, it is the validity of patents that is in play. Here, the parties have largely addressed  
the various grounds of possible invalidity, but in a markedly different order and emphasis. While  
AC leads with its argument that the sufficiency of disclosure is deficient, BRP chose to deal at  
length with anticipation and obviousness.  
Page: 181  
[476] The Court will review the various grounds of invalidity. In my opinion, the asserted claims  
of the three Rider Position Patents have not been anticipated and they are not obvious. I have also  
concluded that the 964 Patent did not suffer from false or misleading statements. However, these  
Patents are invalid because they fail the adequate disclosure requirement under the Patent Act.  
[477] I will seek to review briefly the state of the law before proceeding with my reasons.  
A.  
Anticipation: The Law  
[478] For an invention to exist there must be something new (definition of invention, s.2,  
Patent Act). A lack of novelty will result in a finding of invalidity. Anticipation means that the  
claimed invention was already known to the public. Section 28.2 of the Patent Act requires:  
28.2 (1) The subject-matter  
defined by a claim in an  
application for a patent in  
Canada (the “pending  
application”) must not have  
been disclosed  
28.2 (1) L’objet que définit la  
revendication d’une demande  
de brevet ne doit pas :  
(a) more than one year before  
a) plus d’un an avant la date de  
the filing date by the applicant, dépôt de celle-ci, avoir fait, de  
or by a person who obtained  
knowledge, directly or  
la part du demandeur ou d’un  
tiers ayant obtenu de lui  
indirectly, from the applicant,  
in such a manner that the  
subject-matter became  
available to the public in  
Canada or elsewhere;  
l’information à cet égard de  
façon directe ou autrement,  
l’objet d’une communication  
qui l’a rendu accessible au  
public au Canada ou ailleurs;  
(b) before the claim date by a  
b) avant la date de la  
person not mentioned in  
revendication, avoir fait, de la  
paragraph (a) in such a manner part d’une autre personne,  
that the subject-matter became  
available to the public in  
Canada or elsewhere;  
l’objet d’une communication  
qui l’a rendu accessible au  
public au Canada ou ailleurs;  
 
Page: 182  
[479] Thus, prior disclosure to the public can take different forms, including prior publication  
and prior use, as long as the claimed invention has been made available to the public.  
[480] Anticipation requires that there is not only a prior disclosure of the subject-matter of the  
claim, but also enablement of the subject-matter disclosed. These two are considered separately.  
The process to follow is described in Apotex Inc. v Sanofi-Synthelabo Canada Inc., 2008 SCC 61,  
[2008] 3 SCR 265 [Sanofi], at paragraphs 24 to 27 which are reproduced hereafter:  
[24] In the 2005 decision of the House of Lords in Synthon, Lord  
Hoffmann has brought some further clarity to the law of anticipation  
as understood since General Tire. His reference at para. 20 to the  
“unquestionable authority” of Lord Westbury in Hills v. Evans  
(1862), 31 L.J. Ch. (N.S.) 457, at p. 463, makes it plain that his  
analysis does not depend on any change on English law flowing  
from the enactment of the Patents Act 1977 (U.K.), 1977, c. 37, or  
the U.K.’s adoption of the Convention on the Grant of European  
Patents, 1065 U.N.T.S. 199 entered into force October 7, 1977). He  
distinguishes between two requirements for anticipation that were  
not theretofore expressly considered separately, prior disclosure and  
enablement.  
[25] He explains that the requirement of prior disclosure means  
that the prior patent must disclose subject matter which, if  
performed, would necessarily result in infringement of that patent,  
and states, at para. 22:  
If I may summarise the effect of these two well-  
known statements [from General Tire and Hills v.  
Evans], the matter relied upon as prior art must  
disclose subject matter which, if performed, would  
necessarily result in an infringement of the patent. . . .  
It follows that, whether or not it would be apparent to  
anyone at the time, whenever subject matter  
described in the prior disclosure is capable of being  
performed and is such that, if performed, it must  
result in the patent being infringed, the disclosure  
condition is satisfied.  
When considering the role of the person skilled in the art in respect  
of disclosure, the skilled person is “taken to be trying to understand  
what the author of the description [in the prior patent] meant” (para.  
Page: 183  
32). At this stage, there is no room for trial and error or  
experimentation by the skilled person. He is simply reading the prior  
patent for the purposes of understanding it.  
[26] If the disclosure requirement is satisfied, the second  
requirement to prove anticipation is “enablement” which means that  
the person skilled in the art would have been able to perform the  
invention (para. 26). Lord Hoffmann held that the test for  
enablement for purposes of anticipation was the same as the test for  
sufficiency under the relevant United Kingdom legislation.  
(Enablement for the purposes of sufficiency of the patent  
specification under the Canadian Patent Act, s. 34(1)(b) of the pre-  
October 1, 1989 Act, now s. 27(3)(b), is not an issue to be decided in  
this case and my analysis of enablement is solely related to the test  
for anticipation. The question of whether enablement for purposes of  
sufficiency is identical in Canada is better left to another day.)  
[27] Once the subject matter of the invention is disclosed by the  
prior patent, the person skilled in the art is assumed to be willing to  
make trial and error experiments to get it to work. While trial and  
error experimentation is permitted at the enablement stage, it is not  
at the disclosure stage. For purposes of enablement, the question is  
no longer what the skilled person would think the disclosure of the  
prior patent meant, but whether he or she would be able to work the  
invention.  
I note that the experimentation by the skilled person that would be needed to make or perform the  
invention must be without an undue burden (paras 33 and 35, Sanofi).  
[481] By every account, the test to meet for anticipation is a high one, one that is difficult to meet  
in the words of the Supreme Court in Free World Trust, where the Court quoted with approval this  
famous passage, from Beloit Canada Ltd. v Valmet OY (1986), 8 CPR 3d 289 [Beloit] , at p. 297:  
One must, in effect, be able to look at a prior, single publication and  
find in it all the information which, for practical purposes, is needed  
to produce the claimed invention without the exercise of any  
inventive skill. The prior publication must contain so clear a  
direction that a skilled person reading and following it would in  
every case and without possibility of error be led to the claimed  
invention.  
Page: 184  
It is only the mechanical skills that are required, not inventiveness.  
[482] Anticipation by publication is difficult to establish because 20-20 hindsight is not  
acceptable (Free World Trust, para 25). The two basic requirements for anticipation (prior  
disclosure and enablement) are also found in anticipation by prior use. In Baker Petrolite Corp v  
Canwell Enrio-Industries Ltd., 2002 FCA 158, 17 CPR (4th) 478, [2003] 1 FC 49 [Baker  
Petrolite], the Court of Appeal writes:  
[35] I accept that, at a broad level, the principles in Beloit v.  
Valmet, supra, and Free World Trust, supra, relating to anticipation  
by prior publication are also applicable to anticipation by prior use  
or sale. For example, the evidence of anticipation by prior public use  
or sale, as well as by prior publication, should be subjected to close  
scrutiny. However, below a certain level of generality, the principles  
governing anticipation by prior publication may need to be tailored  
to fit the particular characteristics of anticipation by prior public use  
or sale. For example, the principle that the prior publication must  
contain so clear a direction that a skilled person reading and  
following it would be led, without error, to the invention claimed,  
applies to the specific context of prior publication. In the case of  
prior publication, the skilled person will read the publication. In the  
case of prior use or sale, reading may not be relevant. When faced  
with having to decide whether there has been anticipation by  
disclosure through prior use or sale under paragraph 28.2(1)(a), it is  
necessary for the Court to have regard to the circumstances of prior  
use or sale, in order to determine how a person skilled in the art  
might be led, without error, to the invention claimed. For example,  
was there an analytical method available at the relevant time to lead  
a skilled person to the invention? The United Kingdom authorities  
provide useful guidance in this respect.  
[483] The question is, of course, what will constitute becoming available to the public in  
Canada or elsewhere, in the words of paragraphs 28.2(1)(a) and (b). Referring to a decision of the  
House of Lords, the Court of Appeal is satisfied that the use of the invention must make available  
the information that describes the invention. That appears to be what is referred to as enabling  
Page: 185  
disclosure. The Court quotes with approval Lux Traffic Controls Ltd. v Pike Signals Ltd. and  
Faronwise Ltd., [1993] RPC 107, where it is stated at p.133:  
It is settled law that to invalidate a Patent a disclosure has to be what  
has been called an enabling disclosure. That is to say the disclosure  
has to be such as to enable the public to make or obtain the  
invention.  
[484] Baker Petrolite goes on to discuss the sale of the product. It makes the point that the sale of  
the product to even one person constitutes making available to the public. That is because the new  
owner of the product destroys the secrecy. If the public has the secret, there is no secret anymore:  
it follows that the inventor is not giving anything to the public and is thus not entitled to anything  
in return, that is a monopoly for a number of years.  
[485] If reverse engineering is necessary to discover the invention, the acquisition by any  
member of the public, who is therefore free to use it as she pleases, will be enough to be made  
available to the public. This is not new law. Lord Parker C.J. stated in Bristol-Myers Co.’s  
Application, [1969] RPC 146, close to 50 years ago that “…if the information… has been  
communicated to a single member of the public without inhibiting fetter that is enough to amount  
to a making available to the public…” (p. 155).  
[486] What needs to be stressed is that the disclosure must be an enabling disclosure, that is a  
disclosure that enables the public to make or obtain the invention. Once an invention has been  
sold, the acquirer is free to examine it and discover the invention.  
Page: 186  
[487] When the invention is not acquired such that an examination cannot be easily performed in  
order to have an enabling disclosure, it will prove difficult to establish disclosure by prior use. A  
case in point may be Easton Sports Canada Inc. v Bauer Hockey Corp, 2011 FCA 83; 414 NR 69;  
92 CPR (4th) 103 [Bauer]. In that case, one of the issues was whether there was anticipation in  
view of the use of a patented (hockey) skate boot during Test League games where the teams were  
composed of Bauer employees and others covered by a confidentiality agreement. However, the  
games were open to the public. Easton’s argument was that a person of skill, being present as a  
spectator, would have been able to observe the skates and being able to identify the essential  
elements of the invention.  
[488] Given that the skates were not available for testing and dismantling, the skilled person  
merely attending games would not have been able to discern all the essential features of the  
invention. As a result, the invention was neither disclosed nor enabled, and thus not anticipated.  
[489] The Court of Appeal affirmed:  
[65] Easton submits that the Trial Judge failed to view the Vapor  
8 prototype tested during the Test League from the perspective of  
the person skilled in the art willing to understand and with the  
relevant common general knowledge in mind. It contends that from  
the perspective of such a person, a visual inspection of the Vapor 8  
prototype was “more than sufficient to bring to mind the salient  
aspects of the inventive concept: the one-piece quarter, the angular  
profile and the separate tendon guard attached side-by-side”  
(Easton’s memorandum at para. 58). The issue is thus whether the  
essential elements of the ‘953 Patent would have been revealed to  
the person skilled in the art attending a Test League game and  
observing the skates worn by the participants.  
[66] I pause here to say that the term “visual inspection” used by  
Easton as well as by the Trial Judge throughout her reasons is  
somewhat misleading in that it suggests that the skates were  
available for “careful scrutiny” or “close examination” (see the  
Page: 187  
definition of “inspection”, Shorter Oxford English Dictionary,  
Clarendon Press Oxford, Third Edition). They were not. As the Trial  
Judge makes clear, the skates were not available for testing (Reasons  
at para. 216) and the evidence shows that they could only be  
observed by persons attending the games as spectators or by persons  
coming onto or leaving the ice surface at the beginning and at the  
end of each game (Cross-examination of Mr. Langevin, Appeal  
Book, Vol. 41, pp. 15620-15624).  
[490] The degree of scrutiny and examination required will, of course, vary from product to  
product for the disclosure to be enabling. However, merely viewing, without more, may not satisfy  
the enablingcondition. The disclosure itself must convey enough information for the skilled  
person to make the invention or, as in the case of a skate boot, to discover the internal structure  
and then reproduce the invention without undue burden.  
[491] Finally, relying on Conway v Ottawa Electric Railway Co. (1904), 8 ExCR 432 [Conway],  
BRP argues that there is a further exception to anticipation where the public use is of an  
experimental nature. According to that authority, the experimentation must be reasonable and  
necessary for the purpose of perfecting or testing:  
6
The issue as to the public use of the invention at the City of  
Quebec with the plaintiff’s consent and allowance for more than one  
year previous to the date of his application, presents, I think, much  
greater difficulty. That the invention was used in public for a time  
longer than that allowed by the statute is beyond question. That is  
not denied. But it is said that the use made in the winter of 1899-  
1900 of the ploughs constructed under the plaintiff’s instructions and  
in accordance with his invention, was, experimental, and that such  
use though public, is not to be reckoned against him; that it does not  
defeat his patent; that he had a year after his invention was perfected,  
and the second ploughs were turned out, in which to apply for his  
patent; and that he made his application within that time. It is well  
settled, it seems to me, as well in Canada as in England and the  
United States, that the use of an invention by the inventor, or by  
other persons under his direction by way of experiment, and in order  
to bring the invention to perfection, is not such a public use as under  
Page: 188  
the statute defeats his right to a patent. But there must be  
experiment, and what is done in that way in public must be  
reasonable, and necessary, and be done in good faith for the purpose  
of perfecting the device or testing the merits of the invention,  
otherwise the use in public of the device or invention for a time  
longer than the stature prescribes will be a dedication of it to the  
public; and when that happens the inventor cannot recall his gift, and  
no afterthought will avail him.  
[492] Conway would appear to be good law still. Recently, as high an authority as Justice Roger  
Hughes, in Bayer Inc. v Apotex Inc., 2014 FC 436, found that one of the considerations under  
paragraph 28.2 (1)(a) of the Patent Act was, once disclosure had been found, whether it is  
exempted because it is experimental (para 116). Indeed, Justice Hughes relied on Conway:  
[119] However that does not end the matter. The law in Canada has  
long been established that experimental use in order to bring the  
invention to perfection, does not constitute public use e.g. Conway v  
Ottawa Electric Railway Co., (1904), 8 ExCR 432 at 442; Gibney v  
Ford Motor Co. of Canada, [1967] 2 ExCR 279 at para 49 in citing  
Elias v Grovesend Tinplate Co. (1890), 7 RPC 455 at 466. This  
applies in particular where, of necessity, the experimental use must  
be conducted in public.  
B.  
Anticipation: application to the facts  
[493] AC argues that there is with respect to Rider Position Patents anticipation by prior art  
snowmobiles as well as one prior art patent.  
[494] The Yamaha 503 Patent (U.S. Patent No. 4, 848, 503) is argued by AC as anticipating the  
Rider Position Patents asserted in this case. The US 503 Patent is entitled Small Snowmobile and  
Drive Arrangement Therefor”. This is not a Patent concerned with the configuration of a  
 
Page: 189  
snowmobile. In fact, the Patent makes the difference between conventional snowmobilesand a  
small lightweight snowmobile; this small snowmobile accommodates one rider only. In  
contradistinction to conventional snowmobiles, there is an interest in a smaller lighter machine  
that can be conveniently operated and used by a single person. It is the type of vehicle in which  
the 503 Patent is interested. The 503 Patent does not seek to build a new version of the  
conventional snowmobile. It relates to a small light weight vehicle for which a power unit must be  
adapted. It is readily apparent that the invention has as the principal object, to provide a small  
snowmobile design which is capable of being powered by the engine variable speed drive of the  
type normally used in a motor scooter.(Column 1).  
[495] Not only is the 503 Patent about a small snowmobile as opposed to a snowmobile or a  
conventional snowmobile, but one cannot find in the Patent any reference to parameters for its  
configuration (center of gravity, distances, angles, 50th-percentile, or other measures) or other  
essential element such as a tunnel. At best, we note a reference to (a) seat carried by the frame  
rearwardly of the body position…” (Column 2) AC relies on the 164 Patent (U.S. Patent 4, 892,  
164), which is concerned with the frame and body construction for a small snowmobile. It is  
incorporated by reference to the 503 Patent through a reference to patent application 163,389,  
which became US Patent 164. However, that frame is of tubular welded type: there is no tunnel  
which is part of the frame, as in the REV Patents. Instead, AC asserts that (t)he tunnel was made  
of tubing(memorandum on validity, para 478).  
[496] It is not easy to see how the 503 Patent can anticipate the REV Patents as it does not teach  
all the elements of the claim in issue. It can be even argued that it does not teach any, as it is  
Page: 190  
concerned with something completely different. It would appear that expert Warner, for AC, was  
taken by figure 1 of the 503 Patent where the rider, on that small snowmobile powered by a motor  
scooter, is presented as having hips above knees, ankles behind the knees and knees above ankles.  
From that, Mr. Warner makes a number of assumptions and estimates to arrive at some  
measurements that he claims fall within a number of claims of the three Rider Position Patents.  
That is not clear and convincing evidence which will prove invalidity on a balance of probabilities.  
[497] Thus, Mr. Warner assumes that the rider is of the 50th-percentile male. He estimates a  
location for the center of gravity of the snowmobile and of the system (rider and snowmobile). The  
weight of the rider is that associated with the 50th-percentile male, but he estimates the 503 Patent  
snowmobile to weigh 120 kg. Other than stating that the inventor creates a small snowmobile,  
there is no indication in the 503 Patent of the weight of a small snowmobile. The expert also had to  
estimate the seat position, the location of the steering position and the footrest position. From these  
estimates taken from figure 1, Mr. Warner conducted angular measurements as well as assessing  
distances.  
[498] It is worth repeating what is required to establish anticipation by publication. The single  
publication must contain sufficient information to enable the skilled person to understand the  
nature of the invention and carry it into practical use without aid of inventive genius but purely by  
mechanical skill(from Free World Trust, para 26, quoting from H.G. Fox, The Canadian Law  
and Practice Relating to Letters Patent for Inventions (4th ed 1969)). The test quoted favourably  
in Free World Trust is that of Beloit Canada Ltd., is reproduced again for ease of reference:  
One must, in effect, be able to look at a prior, single publication and  
find in it all the information which, for practical purposes, is needed  
Page: 191  
to produce the claimed invention without the exercise of any  
inventive skill. The prior publication must contain so clear a  
direction that a skilled person reading and following it would in  
every case and without possibility of error be led to the claimed  
invention.  
The demonstration that would satisfy this test has not been made. The information used is derived  
from a rough figure in a patent which is concerned with the tubular design of a small snowmobile  
and its power unit and driving belt. The information is not found in the single publication: it is at  
best estimates and assumptions. The expert went so far as to go completely outside the single  
publication by estimating distances by using the specifications of the SnoScoot which is said by  
the expert to be assumed to embody the invention described in the 503 Patent (report of Mark  
Warner, D-106, para 262).  
[499] But there is more. By definition, the 503 Patent is about an invention that relates to a  
small snowmobile and a drive arrangement therefor and more particularly to an improved power  
unit and transmission mechanism for a small snowmobile.(Column 1) It distinguishes itself from  
snowmobiles sold that are very large and are designed to accommodate more than one rider. The  
503 Patent is not about a typical snowmobile. It is meant to be atypical.  
[500] Furthermore, there is no tunnel in the 503 Patent, only a tubular structure. A seat support  
made of tubes is not the tunnel of the REV Patents.  
[501] Finally, I note that the prosecution history of the three REV Patents acknowledges the  
existence of the 503 Patent, yet the examiner did not stop the journey.  
Page: 192  
[502] As a result, the anticipation by publication, through the U.S. 503 Patent, has not been  
shown on a balance of probabilities.  
[503] AC also sought to argue anticipation by actual snowmobiles prior to December 1998. AC  
claims that there were snowmobiles in public use that had the structural features of the REV  
Patents such that the 50th-percentile male would be seated on the snowmobile in a manner that  
fulfilled the measurements of the claims asserted in this case.  
[504] There are 6 vehicles that are presented as anticipating:  
SnoScoot  
Blade  
Trail Cat  
Twin Track  
T/S  
Hetteen  
These vehicles are also said to be relevant to the obviousness analysis.  
[505] In effect, AC relies on measurements made on the 6 prior art snowmobiles to argue that if  
they fit measurements asserted in the three REV Patents, there would be ipso facto anticipation of  
the new configuration of a snowmobile that is the subject matter of the invention. Dr. Grewal, for  
AC, tried to measure an ATD representing the 50th-percentile male once seated on the 6 prior art  
snowmobiles. It is therefore crucial that the measurements performed by Dr. Grewal have  
themselves validity.  
Page: 193  
[506] Dr. Grewal pretends that there are problems associated with designing a protocol to  
determine whether the prior art snowmobiles fall within the measurements of the BRP Patent  
claims. Even if that were the case, that would not begin to explain why Dr. Grewal positioned the  
ATD on all 6 prior art models well forward of a biomechanically neutral position or the standard  
rider in a standard position. It is obvious to anyone having a quick look at the photographs taken  
by Dr. Grewal to document his measurements, that the ATD is always positioned in an extreme  
fashion that could not correspond to anything close to the biomechanically neutral position called  
for by the REV Patents. He was asked to put the ATD in a full-forward position (expert report of  
Dr. Grewal, D-121, para 53); that is in spite of the fact that the measurements must be taken in  
accordance with the teachings of the Patents or, at the very least, with an ATD positioned in a  
reasonable fashion in view of the Patents, including the figures. In fact, a person of skill would  
have sought to gain an understanding of what constitutes a biomechanically neutral position, or the  
standard position of the standard rider. The full-forward position favoured by Dr. Grewal does not  
even approach, in my view, a reasonable positioning once is factored in the requirement of a  
biomechanically neutral position.  
[507] The positioning of the ATD was fully documented by Dr. Grewal. (D-121, Exhibit K)  
There is no doubt, in the eyes of this Court, that the positioning is evidently chosen for a particular  
purpose. Mr. Larson, for BRP, notes in his Report in response to the challenge to the validity of  
the REV Patents that the ATD was positioned as far forward as possible on the 6 prior art  
snowmobiles. Mr. Larson commented accurately in my view on what results from the positioning  
chosen by Dr. Grewal: In this position, the legs of the ATD are splayed on either side of the fuel  
tank, rather than against the sides of the seat as defined in the ATD Positioning Guidelines. The  
Page: 194  
arms of the ATD are also sent to extreme angles, with elbow angles exceeding 90 degrees rather  
than between 20 and 40 degrees as defined in the ATD Positioning Guidelines.(P-110, para 24)  
If one has to pick between Mr. Larson and Dr. Grewal, one has only to consider exhibit K of D-  
121. In effect, Dr. Grewal is positioning the ATD, for all intents and purposes, as if the rider was  
riding the tank. This is not the standard position: it is rather an aggressive position. There is no  
direct evidence as to what difference in the measurements the positioning chosen by Dr. Grewal  
created compared to standard positioning. But that extreme positioning was chosen. One can only  
suspect that the difference with a more standard position is material.  
[508] For the purpose of establishing the configuration of a snowmobile that would lead to the  
conclusion that the configuration of one meets the measurements of the other, the two sets of  
measurements must be for equivalent positioning. Without that, there is no way of making a  
comparison, let alone reaching a conclusion that one anticipates the other on the sole basis of  
measurements.  
[509] BRP has sought to fault Dr. Grewal for his choice of ATD. It seems that the pedestrian  
ATD used by Dr. Grewal has unrestricted upper leg position compared to the more limited  
movement allowed by the seated ATD used by Mr. Larson. I do not accept BRP’s criticism of the  
choice of ATD. The fact that the legs may be more easily splayed in the case of the pedestrian  
ATD used by Dr. Grewal is in my view largely irrelevant. What counts is the position in which the  
ATD is placed. If the type of ATD allows to put it in an extreme forward position, that does not  
result in allowing that it be done. I agree again with Mr. Larson who said that it is possible to  
position the pedestrian ATD in an unnatural position which is susceptible to negatively affecting  
Page: 195  
the reliability of the results obtained, and that is exactly what Dr. Grewal did. (P-110, para 29) He  
followed the instructions received by AC, but in so doing the reliability, and the value to this  
Court, of the measurements made disappeared. It was of course AC’s burden to, on a balance of  
probabilities, satisfy the Court that the measurements taken of the 6 prior art snowmobiles showed  
anticipation of the REV Patents’ claims. Without reliable measurements taken with a reasonably  
positioned ATD, that demonstration fails.  
[510] For good measure, BRP argues that the ATD in Dr. Grewal’s measurements of the centers  
of gravity moved around; when tilted, the platform on which the snowmobiles were mounted, such  
that the snowmobile may be tilted forward and rearward. Mr. Larson asserted a shift of as much”  
as 0.8 inches. In my view, this becomes secondary as the more problematic issue is the positioning  
of the ATD on the 6 prior art snowmobiles.  
[511] It follows that the only data available is that which come from the measurements of Mr.  
Larson. That is the only evidence left before the Court. As a result, the following claims have been  
proven, on this record, to have not been anticipated by the following prior art snowmobiles  
without even having to discuss any further at this stage the construction of these vehicles:  
Page: 196  
Blade  
Hetteen  
Page: 197  
Trail Cat  
SnoScoot  
(memorandum of fact and law, BRP, paras 722, 730, 731, 744)  
Page: 198  
[512] As for the 1991 T/S and the Twin Track oval ice snowmobile, I agree with the Plaintiff that  
they are not snowmobiles as intended in the claims of the asserted Patents. They are not the kind  
of snowmobile that could be considered together with the REV, as their construction, from the  
simple visual examination of them, clearly is targeted at a different purpose: they are racing  
machines built for oval racetracks where the vehicle turns left (counter-clockwise). As the  
evidence showed, they don’t ride on snow, as they are built to race on ice, and uneven surfaces  
such that bumps and trails are to be excluded. They have an asymmetrical construction, the idea  
being that they are built to take the turns to the left at high speeds. The rider sits off the center of  
the vehicle in order to counterbalance when the vehicle turns.  
[513] I accept the evidence of Gerard Karpik, for BRP, who reports that the T/S and Twin Track  
do not carry skis but rather sharp blades created to acquire good traction on the tracks’ icy  
surfaces. If ridden on bumpy trails, the blades sink in the snow. He testified that if an attempt were  
made to turn right at high speed, these vehicles flip over due to the particular suspension’s  
geometry. Indeed, the small travel of those suspensions was described as making them unsuitable  
for riding over bumps and generally rough terrain (P-121).  
[514] To top it off, the Twin Track has obviously two tracks.  
[515] In my view, the Arctic Cat T/S and the Bombardier Twin Track provide no useful  
information either for anticipation or obviousness, as the Court was urged in fine in the oral  
argument (transcripts, April 16, 2015, p. 141). I will comment further in the part of the reasons  
Page: 199  
dealing with obviousness. In my view, these two machines are, as suggested by Mr. Larson, not  
relevant here.  
[516] As for the Hetteen and the SnoScoot, they are deficient in another way. The Hetteen was a  
vehicle developed by Edgar Hetteen, the founder of Arctic Cat. For the purpose of the anticipation  
argument, AC conceded that it could not rely on this machine because it does not have a seat  
disposed on the tunnel (transcripts, April 16, 2015, p. 151). Still AC would wish for the Hetteen to  
be considered towards obviousness. Some observations are nevertheless apposite at this stage. The  
evidence concerning the availability of the Hetteen comes from David Karpik, for AC, who  
recalled seeing the snowmobile in the late nineties when he visited Edgar Hetteen (D-99). His  
brother, Gerard Karpik, for BRP, who is also extremely familiar with the snowmobile industry,  
testifies that he had never seen the Hetteen until 2013 when his brother brought it into their shop  
where, according to his testimony of March 24, 2015, he saw an older looking vehicle in the  
garage area. It is less than clear that this vehicle was ever available to the public in Canada or  
elsewhere. Moreover, when one considers the photographs of the Hetteen in Mr. David Karpik’s  
report (exhibits V and W) or in Dr. Grewal report (D-121, exhibit K), it is virtually impossible to  
even suggest that the Hetteen would have been disclosing the invention of a new configuration. It  
was evidently old-school.  
[517] Furthermore, the Hetteen can be described as a hybrid between a snowmobile and a  
motorcycle (Mark Warner, AC’s expert, transcripts, March 11, 2015, p. 62). With the “gear  
shifter” and the break lever at the feet, Mr. Warner conceded that the Hetteen is not a regular  
Page: 200  
snowmobile. Mr. Cowley also agreed that the Hetteen looks like a lot like a motorcycle”  
(transcripts, March 4, 2015, p. 194).  
[518] In my view, the Hetteen is of no use to this Court for the purpose of anticipation and even  
obviousness.  
[519] The SnoScoot, manufactured by Yamaha, has its significant deficiencies too. It is not  
disputed that the 503 Patent is for the SnoScoot. The 503 Patent establishes clearly that it is  
interested by a small snowmobile, distinguishing it from large snowmobiles, because there is an  
interest in a smaller lighter machine that can be conveniently operated and used by a single  
person.(503 Patent, column 1) I accept the evidence of Gerard Karpik, who has extensive  
experience in snowmobile design, including the design of the Blade, who stated emphatically that  
the SnoScoot did not provide any inspiration as he was designing the Blade. He wrote: As the  
designer of a frame for an adult snowmobile, I would not seek inspiration from the SnoScoot mini  
snowmobile because it is a small snowmobile designed for children up to 12 years old.(P-121,  
para 64) “If the snowmobile to be improved by the REV Patents is the snowmobile to be used on  
trails and over bumps at high speed, there was nothing to learn from the SnoScoot.” (P-121, para  
65).  
[520] Furthermore, the SnoScoot, as the 503 Patent, does not show a tunnel. An open structure  
used to support a seat does not become a tunnel because the tunnel of the REV Patents also  
supports a seat. In the case of the SnoScoot, it protects the rider from the snow through some  
plastic track guard which would not add rigidity to the structure, while the REV Patents all require  
Page: 201  
a frame including a tunnel. The seat of the SnoScoot is on a structure made out of tubes, an open  
structure that does not prevent the snow from the track to reach the rider.  
[521] AC’s argument on anticipation is that, if the measurements obtained through Dr. Grewal’s  
methodology carry weight, there is at least one prior art snowmobile that anticipates every asserted  
claim. However, I have concluded that the evidence never rises to the balance of probabilities.  
First and foremost, the measurements of Dr. Grewal cannot be used in view of the position in  
which he was instructed to put the ATD he used for the purpose of the measurements. The extreme  
forward position cannot comply with the requirements of the REV Patents. It does not even  
attempt to account for the biomechanically neutral position (or standard rider in a standard  
position). This is a fatal flaw. The reliance on an understanding that snowmobile riding is a  
dynamic sport to adopt varying riding positions was also misplaced; it may have contributed to the  
misapprehension of the riding position taught by the Patents-in-suit. As a result, the measurements  
used by AC cannot carry any weight and they cannot support a case for anticipation that must be  
on a balance of probabilities. The evidence was neither clear nor convincing. It was absent.  
C.  
Obviousness: the law  
[522] It is section 28.3 of the Patent Act which requires that an invention must not be obvious on  
the claim date:  
28.3 The subject-matter defined 28.3 L’objet que définit la  
by a claim in an application for revendication d’une demande  
a patent in Canada must be  
subject-matter that would not  
de brevet ne doit pas, à la date  
de la revendication, être évident  
have been obvious on the claim pour une personne versée dans  
date to a person skilled in the  
art or science to which it  
pertains, having regard to  
l’art ou la science dont relève  
l’objet, eu égard à toute  
communication :  
 
Page: 202  
(a) information disclosed more a) qui a été faite, plus d’un an  
than one year before the filing  
date by the applicant, or by a  
person who obtained  
avant la date de dépôt de la  
demande, par le demandeur ou  
un tiers ayant obtenu de lui  
l’information à cet égard de  
knowledge, directly or  
indirectly, from the applicant in façon directe ou autrement, de  
such a manner that the  
information became available  
to the public in Canada or  
elsewhere; and  
manière telle qu’elle est  
devenue accessible au public au  
Canada ou ailleurs;  
(b) information disclosed  
before the claim date by a  
person not mentioned in  
b) qui a été faite par toute autre  
personne avant la date de la  
revendication de manière telle  
paragraph (a) in such a manner qu’elle est devenue accessible  
that the information became  
available to the public in  
Canada or elsewhere.  
au public au Canada ou ailleurs.  
The obviousness is to be appreciated through the expertise of the person skilled in the art. The  
Court will, of course, consider the invention as claimed.  
[523] As with anticipation, the burden is on the shoulders of the party which claims obviousness  
and that party must satisfy the Court on a balance of probabilities. While anticipation relates to a  
lack of novelty, obviousness is concerned with a lack of inventiveness. It is a question of fact  
tested independently for each claim.  
[524] It is in Sanofi that the Supreme Court, borrowing from an English case, developed a four-  
step approach in order to bring better structure to the obviousness inquiry. That is also aimed at  
bringing more objectivity and clarity. The passage is quoted in most patent decisions where  
obviousness is alleged. It is reproduced here for ease of reference:  
Page: 203  
[67]  
In the result I would restate the Windsurfing questions thus:  
(1)  
(a) Identify the notional “person skilled in the art”;  
(b) Identify the relevant common general knowledge of that  
person;  
(2)  
(3)  
Identify the inventive concept of the claim in question or if  
that cannot readily be done, construe it;  
Identify what, if any, differences exist between the matter  
cited as forming part of the “state of the art” and the  
inventive concept of the claim or the claim as construed;  
(4)  
Viewed without any knowledge of the alleged invention as  
claimed, do those differences constitute steps which would  
have been obvious to the person skilled in the art or do they  
require any degree of invention?  
[Emphasis in the original]  
[525] Secondary factors can be used by the Court to determine if the invention is obvious. The  
following, taken from Jay-Lor International Inc. v Penta Farm Systems Ltd., 2007 FC 358, 59  
CPR (4th) 228, appears to be a good exposé of the state of our law:  
[91] Finally, I would like to address the factors related to  
obviousness. A number of these were outlined by Justice Décary in  
Diversified Products Corp. v. Tye-Sil Corp. (1991), 35 C.P.R. (3d)  
350 (F.C.A.). In Wessel v. Energy Rentals Inc., 2004 FC 791, 253  
F.T.R. 279, [2004] F.C.J. No. 952 at para. 22 (F.C.) (QL), this Court  
set out a number of relevant considerations. In considering the  
question of obviousness and based on the evidence before me in this  
case, I would adopt the following factors as relevant:  
1.  
Was the invention novel and superior to what was available  
prior to the invention? Before the introduction of the JAY-  
LOR vertical feed mixer, no mixer had a sloped top to its  
auger. Further, it is clear from the evidence that the sloped  
top assisted in preventing jamming of large hay bales.  
2.  
Has the invention been, since its introduction to the market,  
used widely and in preference to alternative devices?  
Page: 204  
Immediately upon its introduction, JAY-LOR sales of  
vertical feed mixers increased dramatically.  
3.  
4.  
Did competitors as well as experts in the field ever think of  
the combination? There was no evidence before me that the  
combination of the elements of the JAY-LOR vertical feed  
mixer was ever considered. This factor is addressed in detail  
under the heading of “Anticipation” below.  
Was there amazement expressed by the community at its first  
publication? Mr. Carl Alexander, who works for a dealer in  
agricultural machinery in Alabama, spoke of his early  
exposure to the patented invention. In his testimony, Mr.  
Alexander described his initial response to the redesigned  
mixer as, “I didn’t think it would work.” Once convinced that  
the design would work, Mr. Alexander used the slope top  
auger feature as a selling point. While this may not qualify as  
“amazement” on the scale of – for example the invention of  
penicillin, it is certainly an indication that the invention came  
as a surprise to and was appreciated by the community in  
which the vertical feed mixer is sold.  
5.  
6.  
Did the invention enjoy commercial success? The success of  
the invention can be measured concretely by the increase in the  
sales of JAY-LOR vertical feed mixers after they were  
introduced to the market.  
Has there been imitation of the invention since its introduction?  
The evidence is that other manufacturers of vertical feed  
mixers re-designed their products to include a sloped top to the  
auger. According to the testimony of Mr. Tamminga, two of  
JAY-LOR’s competitors – Lucknow and Patz began  
marketing mixers with sloped tops. After being alerted to JAY-  
LOR’s patent, both changed their design. One other  
manufacturer, Kuhn Knight, initially went to sloped top and  
has now developed and patented an off-set auger to achieve the  
same functionality.  
7.  
Did the inventor come easily to the invention? Mr. Tamminga  
testified that he worked on the problem for almost two years,  
trying a number of designs before he accidentally stumbled on  
the solution of an inclined auger post top. He developed a  
number of prototypes of the new version of the vertical feed  
mixer.  
[92] In summary, the JAY-LOR vertical feed mixer was an  
invention that was not intuitive, that took significant time and effort to  
Page: 205  
develop, that demonstrated immediate commercial success and that  
was copied by competitors. Cumulatively, the effect of these factors is  
"simply irresistible" (Beloit, above at 296); the patent was inventive  
and not obvious. Stated in words that mirror those of Justice Hugessen  
in Beloit, above, the mythical creature (the man in the Clapham  
omnibus of patent law) would not, in the light of the state of the art and  
of common general knowledge as at the claimed date of invention,  
have come directly and without difficulty to the solution taught by the  
patent. The claim of obviousness fails and the '092 Patent is not invalid  
by reason of obviousness.  
[526] The person of skill is not the inventor. He is a good technician, but without inventiveness  
or imagination who will come directly and without difficulty to the invention:  
The test for obviousness is not to ask what competent inventors did  
or would have done to solve the problem. Inventors are by definition  
inventive.The classical touchstone for obviousness is the technician  
skilled in the art but having no scintilla of inventiveness or  
imagination; a paragon of deduction and dexterity, wholly devoid of  
intuition; a triumph of the left hemisphere over the right. The  
question to be asked is whether the mythical creature (the man in the  
Clapham omnibus of patent law) would, in light of the state of the  
art and of common general knowledge as at the claimed date of the  
invention, have come directly and without difficulty to the solution  
taught by the patent. It is a very difficult test to satisfy.  
Beloit, p. 294  
D.  
Obviousness: application to the facts  
[527] In my view, obviousness has not been shown on a balance of probabilities.  
[528] As I understand it, the AC argument turns largely on the identification of the inventive  
concept. That is what the essence of the invention is. The argument on obviousness was less than  
fulsome, both in AC’s memorandum and during oral argument. It seems to boil down to two  
things:  
 
Page: 206  
If the inventive concept is the repositioning of the rider and the redesign of the  
snowmobile, AC complains that they are neither described or claimed clearly. It  
follows, goes the argument, that the inventive concept cannot be determined.  
a)  
b)  
If the inventive concept is that presented by expert Breen, there would not be  
anything inventive.  
Neither proposition is convincing as establishing obviousness. But it may point in the direction of  
the real deficiency of the Patents-in-suit as the first argument seems to merge with arguments  
about the quality of the disclosure.  
[529] I begin with the second argument. AC offered as Mr. Breen’s presentation of the inventive  
concept the following at paragraph 1019 of its memorandum on validity:  
1019. Mr. Breen argues that the inventive concept of the Rider  
Positioning Patents can be described as follows:  
(a)  
106 Patent a center of gravity of the system (rider  
and snowmobile) that is closer to the center of gravity of the  
snowmobile  
(b)  
813 Patent relationship between the seating position  
steering position and footrest position where Alpha (the angle  
at the seat position) is greater that Beta (the angle at the  
footrest position) which is greater that the angle Gamma (at  
the steering position). According to Mr. Breen the  
conventional configuration had Gamma as the largest angle.  
(c)  
964 Patent- an active rider position with the rider’s  
hips above his knees and ankles behind his knees  
[530] That characterization allowed AC to argue that there is therefore nothing inventive in the  
three REV Patents. The triangular relationship was known. The angular relationship was known  
(in the Hetteen and the SnoScoot). The idea of centralizing mass was known. The importance of  
centers gravity was known.  
Page: 207  
[531] The problem with this argument is that it mischaracterizes the inventive concept offered by  
Mr. Breen. Instead of using the definition of the inventive concept offered by expert Kevin Breen  
for BRP, the argument on obviousness is limited to the angles and measurements. Thus, Mr. Breen  
wrote in paragraph 277 of P-114 what he considers is disclosed and claimed:  
[277] In my opinion, the 106, 813 and 964 Patents each disclose an  
inventive concept:  
(a)  
The 106 Patent discloses and claims a particular  
snowmobile configuration in which the center of gravity of  
the standard rider is closer to the center of gravity of the  
snowmobile as compared to conventional snowmobiles (see  
paragraph [28] of my first report);  
(b)  
The 813 Patent discloses and claims a particular  
snowmobile configuration in which a steering position,  
footrest position and seat position define a triangle having  
specific ranges of angles. This patent specifically references  
the geometric angles and triangle between various  
components of the snowmobile and the rider. (see paragraph  
[34] of my first report); and  
(c)  
The 964 Patent discloses and claims a particular  
configuration of snowmobile in which the hips, knees and  
ankles of the rider are positioned relative to one another  
differently than on a conventional snowmobile (see paragraph  
[43] of my first report).  
[My emphasis]  
[532] As is rather obvious, the notion of configuration is dropped from paragraph 277 of P-114 in  
AC’s characterization of Mr. Breen’s inventive concept. Based on the alteration made to the  
inventive concept, AC argues that the centralization of masses and the various angles and  
measurements would have been known. There was no invention in advancement of the art. AC  
evidently relied on Mr. Breen’s cross-examination where he was asked at different times about his  
inventive concept being the change in the center of gravity, the triangular relationship between  
Page: 208  
steering position, seating position and footrest position, and the more aggressive riding position  
(ankles, knees, hips). I did not take then, and I do not take now, that in so doing Mr. Breen was  
abandoning the fundamental position that the inventive concept was the reconfiguration of a  
snowmobile that would be exemplified by the centralization of the masses, the relationship  
between these positions (seating, steering, footrest) and the position of ankles, knees and hips. He  
was simply cutting to the chase, during the cross-examination, using the short cut presented by  
Counsel, the new reconfiguration of a snowmobile for each invention being a function of one of  
the three sets of relationships (centers of gravity for the centralization of masses, the various  
positions relationship, and the position of the ankles, knees and hips). AC chose to rely on its  
leading questions on cross-examination to argue that, somehow, Mr. Breen had relented from the  
written words to exclude from his definition of inventive conceptof the three Patents that which  
is at the heart of the three inventions: (t)he present invention concerns the overall design and  
construction of a snowmobile(first sentence under Field of the Invention in the three Patents). In  
my view, Mr. Breen did not, in cross-examination, abandon the very foundation of the Patents-in-  
suit. BRP and Mr. Breen have insisted throughout that the invention is a snowmobile, a  
reconfigured snowmobile. It is not a set of measurements. The cross-examination did not change  
anything.  
[533] AC was also relying on the measurements made by Dr. Grewal in general support of its  
obviousness argument. However, as already found, these measurements are of no assistance given  
the choice made to measure an ATD in a position that cannot be biomechanically neutral, or that  
of a standard rider in a standard position.  
Page: 209  
[534] In my estimation, there cannot be any doubt that the three inventions are about a new  
configuration of a snowmobile. The better question is whether the three Patents disclose the  
invention and what is needed in order to implement the invention, to put the invention into practice  
having only to read the Patent. That will be the subject of a separate section in these reasons for  
Judgment.  
[535] BRP is right that AC’s demonstration falls short of showing that each claim at issue has  
been independently tested. Nevertheless, AC’s argument is in fact that it is more or less self-  
evident that the invention is nothing new given the prior art.  
[536] The invention here is a new configuration of a snowmobile, its new design and  
construction. The Blade and the Trail Cat are not disputed as being snowmobiles. It is rather that  
the evidence shows that they are in a conventional prior art position. I would have made the same  
finding concerning the Twin Track, the Hetteen and the T/S: it is impossible to suggest  
successfully that they could have been even an inspiration for the three Patents-in-suit (see exhibit  
K of Dr. Grewal’s report, D-121 which presents side views of the 6 prior art vehicles). At any rate,  
the T/S and Twin Track are designed for oval ice racing circuits which have been shown to be very  
different from the snowmobiles contemplated by the REV Patents. The Hetteen was described by  
Mr. Breen as not being a snowmobile being rather a snow bike(P-114, para 284). That makes it  
something rather unique; it does not even come close to the snowmobile of the REV Patents. We  
are, in my estimation, a long distance away from the Hetteen, and other prior art, to the REV. The  
fourth element of the Sanofi test for obviousness requires the differences between the prior art and  
the invention to be steps which would be obvious to the skilled person or would not require a  
Page: 210  
degree of invention. There was no evidence of a persuading nature that was offered by AC to that  
effect.  
[537] The SnoScoot, the 503 Patent and the Honda Patent are all small vehicles that could hardly  
be the inspiration for the snowmobile contemplated by the invention. It is not necessary to discuss  
at any length the Honda Patent. I accept fully the comment made by Mr. Breen in his report (P-  
114):  
284(b) The snowmobile disclosed in the Honda Patent is a  
small, leaning snowmobile, with design considerations  
very different from those claimed in the REV Patents.  
The Honda Patent would not be a source of inspiration  
for a person skilled in the art wanting to design a  
snowmobileas per the claims of the REV Patents;  
The Honda Patent (JP H8-91228) is concerned with a one ski machine that, according to Mr.  
Breen, would not have been sold in the market place if it was ever put into practice. It does not  
have a tunnel.  
[538] The Court has already discussed at some length the SnoScoot, which commercialized the  
Yamaha 503 Patent. The 503 Patent did not represent itself as a snowmobile; in fact it sought to  
distinguich itself from a snowmobile. Its frame and body construction is comprised of an open  
tubular frame. It is meant to be light. Mr. Warner suggested that its weight would be around  
120kg. In fact, his own report (D-107) refers to an exhibit (DD) that provides the dimension of the  
SnoScoot with the weight estimated rather at around 100kg.  
Page: 211  
[539] The first argument on obviousness is more difficult to apprehend. It conflates to some  
extent obviousness with the insufficiency of the Patents such that it is not possible to practice the  
invention. BRP raised that issue. It is conceptually difficult to understand how the lack of  
information to put the invention into practice can relate to obviousness. If obviousness is  
characterized by the skilled technician who keeps up with the state of the art being able to directly  
and without difficulty come to what is claimed in a patent, how does not being able to practice the  
invention equates with obviousness? In my view, the matter is better left to the lack of adequate  
disclosure.  
[540] A consideration of secondary factors would also favour BRP. The Court has no doubt that  
the REV shows 1) superiority over the traditional configuration; 2) was used widely; 3) reaction in  
the specialized media, as demonstrated earlier, was emphatically positive; 4) the competition  
noticed. The evidence is overwhelming. The secondary factors constitute strong corroboration that  
something new was on the market.  
[541] As can be seen, there is strong evidence that BRP created a new configuration for  
snowmobiles. However, BRP chose to argue its case by trying to show that angles and distances  
relating to the centralization of masses, the positions of seats, steering and footrest as well as  
ankles, knees and hips were sufficient to establish the infringement of the Patents, each being a  
configuration of a new snowmobile. Whether these Patents can be put into practice was hardly  
addressed by BRP in the final argument and in their memorandum of fact and law. That is in  
complete contrast to what was argued from the start by AC. AC put significant emphasis on the  
impossibility to go from the Patents to the new configuration. As put by Mr. Warner in his report  
Page: 212  
D-107 at para 125, “the only structural change discussed in the 106 Patent (although not claimed)  
is moving the steering device 132 more forward”. The issue is therefore whether, generally  
speaking, the inventions can be put into practice.  
E.  
Adequate disclosure: indefiniteness and insufficiency  
[542] Contrary to BRP that relegated the adequacy of the disclosure as somewhat of an  
afterthought to be dealt with at the end, AC started off with the quality of disclosure. In effect, AC  
has complained about how obscure the Patents-in-suit are in a variety of ways. Throughout the  
case, AC raised the issue of the difficulty posed by the three Patents in terms of defining an  
invention, the ambiguity of the disclosure and its insufficiency. How much of a new configuration,  
compared to conventional snowmobile configurations, is created by the so-called invention where  
what is offered is ranges in measurements? How is the old configuration, which ought to be the  
benchmark, the point of reference, defined or described to understand how much departure from  
the norm constitutes a new configuration? What are those metrics actually showing? The Court  
took this as being the main argument in view of the emphasis put on this issue.  
[543] AC takes the Court to the fundamentals of the patent system. This takes us back to the  
original bargain as it is formulated again in Teva Canada Ltd. v Pfizer Canada Inc., 2012 SCC 60,  
[2012] 3 SCR 625 [Teva] at paragraphs 32 and 33:  
[32] The patent system is based on a “bargain”, or quid pro quo:  
the inventor is granted exclusive rights in a new and useful invention  
for a limited period in exchange for disclosure of the invention so  
that society can benefit from this knowledge. This is the basic policy  
rationale underlying the Act. The patent bargain encourages  
innovation and advances science and technology. Binnie J. explained  
the quid pro quo as follows in AZT, at para. 37:  
 
Page: 213  
A patent, as has been said many times, is not intended  
as an accolade or civic award for ingenuity. It is a  
method by which inventive solutions to practical  
problems are coaxed into the public domain by the  
promise of a limited monopoly for a limited time.  
Disclosure is the quid pro quo for valuable  
proprietary rights to exclusivity which are entirely the  
statutory creature of the Patent Act.  
[33] The role of the patent specification in the quid pro quo was  
described as follows by Lord Halsbury in Tubes, Ld. V. Perfecta  
Seamless Steel Tube Company, Ld. (1902), 20 R.P.C. 77, at pp. 95-  
96:  
. . . if one has to look at first principles and see what  
the meaning of a Specification is . . . why is a  
Specification necessary? It is a bargain between the  
State and the inventor: the State says, “If you will tell  
what your invention is and if you will publish that  
invention in such a form and in such a way as to  
enable the public to get the benefit of it, you shall  
have a monopoly of that invention for a period of  
fourteen years.” That is the bargain. The meaning  
which I think, in my view of the Patent Law, has  
always been placed on the object and purpose of a  
Specification is that it is to enable, not anybody, but a  
reasonably well informed artisan dealing with a  
subject-matter with which he is familiar, to make the  
thing, so as to make it available for the public at the  
end of the protected period. [Emphasis added.]  
Lord Halsbury’s view was cited with approval by Dickson J. (as he  
then was) in Consolboard, at p. 523.  
[Emphasis in the original]  
In short, the sufficiency of disclosure lies at the very heart of the systemas noted by the Court at  
paragraph 31.  
Page: 214  
[544] The Patent Act provides for what must be found in the specification of an invention:  
27 (3) The specification of an  
27 (3) Le mémoire descriptif  
invention must  
doit :  
(a) correctly and fully describe a) décrire d’une façon exacte et  
the invention and its operation  
or use as contemplated by the  
inventor;  
complète l’invention et son  
application ou exploitation,  
telles que les a conçues son  
inventeur;  
(b) set out clearly the various  
steps in a process, or the  
method of constructing,  
b) exposer clairement les  
diverses phases d’un procédé,  
ou le mode de construction, de  
making, compounding or using confection, de composition ou  
a machine, manufacture or  
composition of matter, in such  
full, clear, concise and exact  
terms as to enable any person  
skilled in the art or science to  
d’utilisation d’une machine,  
d’un objet manufacturé ou d’un  
composé de matières, dans des  
termes complets, clairs, concis  
et exacts qui permettent à toute  
which it pertains, or with which personne versée dans l’art ou la  
it is most closely connected, to science dont relève l’invention,  
make, construct, compound or  
use it;  
ou dans l’art ou la science qui  
s’en rapproche le plus, de  
confectionner, construire,  
composer ou utiliser  
l’invention;  
(c) in the case of a machine,  
explain the principle of the  
machine and the best mode in  
which the inventor has  
c) s’il s’agit d’une machine, en  
expliquer clairement le principe  
et la meilleure manière dont  
son inventeur en a conçu  
contemplated the application of l’application;  
that principle; and  
(d) in the case of a process,  
d) s’il s’agit d’un procédé,  
explain the necessary sequence, expliquer la suite nécessaire, le  
if any, of the various steps, so  
as to distinguish the invention  
from other inventions.  
cas échéant, des diverses  
phases du procédé, de façon à  
distinguer l’invention en cause  
d’autres inventions  
(d) in the case of a process,  
d) s’il s’agit d’un procédé,  
explain the necessary sequence, expliquer la suite nécessaire, le  
if any, of the various steps, so  
as to distinguish the invention  
from other inventions.  
cas échéant, des diverses  
phases du procédé, de façon à  
distinguer l’invention en cause  
d’autres inventions.  
[My emphasis]  
Page: 215  
Subsection 27 (4) states that the claims define the scope of the monopoly:  
27 (4) The specification must  
end with a claim or claims  
defining distinctly and in  
explicit terms the subject-  
matter of the invention for  
27 (4) Le mémoire descriptif se  
termine par une ou plusieurs  
revendications définissant  
distinctement et en des termes  
explicites l’objet de l’invention  
which an exclusive privilege or dont le demandeur revendique  
property is claimed.  
la propriété ou le privilège  
exclusif.  
The two should not be confused. As reiterated in Teva at paragraph 55, what the Act requires is  
that the courts consider the specification as a whole to determine whether the disclosure of the  
invention is sufficient.”  
[545] The Supreme Court of Canada in Pioneer Hi-Bred v Canada (Commissioner of Patents),  
[1989] 1 SCR 1623 [Pioneer Hi-Bred] could hardly have been much clearer about the need for  
complete disclosure:  
In Canada, the granting of a patent means the kind of contract  
between the Crown and the inventor in which the latter receives an  
exclusive right to exploit his invention for a certain period in  
exchange for complete disclosure to the public of the invention and  
the way in which it operates.  
(p.1636)  
[My emphasis]  
[546] Disclosure will serve at least two purposes. The competition will know the limits of the  
patent and it will therefore be aware of their freedom of maneuver when they work in an area  
related to that of the patentee.(Pioneer Hi-Bred, p. 1637) Furthermore, the disclosure will  
identify the steps followed and it will distinguish between that which is theoretical and the  
invention which requires human activity.  
Page: 216  
[547] The principles are well described at p. 1638 of Pioneer Hi-Bred:  
In summary, the Patent Act requires that the applicant file a  
specification including disclosure and claims (Consolboard Inc.,  
supra, at p. 520). Canadian courts have stated in a number of cases  
the test to be applied in determining whether disclosure is complete.  
The applicant must disclose everything that is essential for the  
invention to function properly. To be complete, it must meet two  
conditions: it must describe the invention and define the way it is  
produced or built (Thorson P. in Minerals Separation North  
American Corp. v. Noranda Mines Ltd., [1947] Ex. C.R. 306, at p.  
316). The applicant must define the nature of the invention and  
describe how it is put into operation. A failure to meet the first  
condition would invalidate the application for ambiguity, while a  
failure to meet the second invalidates it for insufficiency. The  
description must be such as to enable a person skilled in the art or the  
field of the invention to produce it using only the instructions  
contained in the disclosure (Pigeon J. in Burton Parsons Chemicals  
Inc. v. Hewlett-Packard (Canada) Ltd., [1976] 1 S.C.R. 555, at p.  
563; Monsanto Co. v. Commissioner of Patents, [1979] 2 S.C.R.  
1108, at p. 1113) and once the monopoly period is over, to use the  
invention as successfully as the inventor could at the time of his  
application (Minerals Separation, supra, at p. 316).  
[My emphasis]  
[548] The Teva case (aka the Viagra case) constitutes a further elaboration of what is required  
for a disclosure to satisfy the law. Both the claims and the disclosure will be put to contribution.  
The failure to describe how to put in operation an invention will result in invalidation for  
insufficiency. In order to put in operation an invention with only the assistance of the patent, the  
Teva Court corrects what it considers to have been a misinterpretation of Consolboard by being  
merely satisfied with the answer to two questions: What is your invention?and How does it  
work?. The Court insists on the quality of the description in answering the two questions. It must  
be correct and full, in the words of Dickson J. in Consolboard, quoting with approval Minerals  
Separation North American Corp. v Noranda Mines Ltd., [1947] Ex CR 306 in order that”… :  
Page: 217  
… when the period of monopoly has expired the public will be able,  
having only the specification,to make the same successful use of the  
invention as the inventor could at the time of his application.  
[My emphasis]  
[549] In fact, the Teva court applies a rigorous test to the specification:  
[74] The disclosure in the specification would not have enabled  
the public “to make the same successful use of the invention as the  
inventor could at the time of his application”, because even if a  
skilled reader could have narrowed the effective compound down to  
the ones in Claim 6 and Claim 7, further testing would have been  
required to determine which of those two compounds was actually  
effective in treating ED. As the trial judge stated, at para. 146, “[a]  
skilled reader would then conduct tests on those two compounds and  
determine which of those compounds worked”. And as he also  
stated, at para. 135, “the skilled reader must undertake a minor  
research project to determine which claim is the true invention”.  
[550] The fact that Teva had been able to use the invention does not change the requirement that  
the specification must be of such quality, being correct and full, as to allow the skilled person to  
put the invention into practice:  
[75] Pfizer argued in the Court of Appeal that Teva had already  
been able to make the same use of the invention having only the  
specification, because it had filed a submission with the Minister of  
Health for a drug product containing sildenafil (F.C.A., at para. 48).  
However, this does not change the fact that the specification  
required, at a minimum, “a minor research project” in order to  
determine whether Claim 6 or Claim 7 contained the correct  
compound. The fact that Teva carried out this minor research project  
is irrelevant to Pfizer’s obligation to fully disclose the invention.  
More importantly, what must be considered is whether a skilled  
reader having only the specification would have been able to put the  
invention into practice. The trial judge clearly found that the skilled  
reader would have had to undertake a minor research project to  
determine what the true invention was.  
[My emphasis]  
Page: 218  
Leaving the reader guessing, in essence saying figure it out, runs the significant risk of making  
the patent invalid. A method of drafting that does not clearly set out the invention will render the  
patent invalid (para 76, Teva). The Court cites Perry and Currier (Canadian Patent Law,  
LexisNexis, 2012) at § 8.55:  
[78] …They say the following, at §8.55:  
. . . an invention that is possessed of novelty,  
inventiveness and utility will not benefit from patent  
protection if the specification is insufficient or  
ambiguous. The description must explain the nature  
of the invention failing which the specification is  
ambiguous, and it must describe how the invention is  
put into operation failing which the specification is  
insufficient. In either case, the patent is invalid.  
[Emphasis is the original]  
Vaver put it thus:  
If a person skilled in the art can arrive at the same results  
only through chance or further long experiments, the disclosure is  
insufficient and the patent is void. …  
Ultimately, the disclosure must be fair, honest, open and  
sufficient. The sufficiency of the disclosure, with any valid  
amendments made to it, is judged at the patent’s claim date.  
Inventors need not keep abreast of their field after filing their  
application: that is made clear by a provision that allows the making  
of only such changes to a specification as are reasonably inferable  
from the original disclosure. Patent holders cannot therefore be held  
responsible for inadequacies that arise from knowledge acquired or  
developments occurring after the claim date.  
Page: 219  
The disclosure must give skilled readers enough information  
for them easily to adopt the invention when the patent expires, and  
for them to try to improve or experiment on it meanwhile. The  
patent holder who sets puzzles or holds back essential secrets  
invalidates the whole patent. The disclosure is equally insufficient if  
the instructions or drawings on how to work the invention are wrong  
and a skilled worker cannot use them or his general ability to  
replicate the invention.  
(p. 342)  
[My emphasis]  
[551] Obscurity is frowned upon. Disclosure is important. It is essential. Game playing should  
not be allowed as the Teva Court reiterated:  
[80] …However, the public’s right to proper disclosure was  
denied in this case, since the claims ended with two individually  
claimed compounds, thereby obscuring the true invention. The  
disclosure failed to state in clear terms what the invention was.  
Pfizer gained a benefit from the Act exclusive monopoly rights  
while withholding disclosure in spite of its disclosure obligations  
under the Act. As a matter of policy and sound statutory  
interpretation, patentees cannot be allowed to “game” the system in  
this way. This, in my view, is the key issue in this appeal. It must be  
resolved against Pfizer.  
[My emphasis]  
The Supreme Court has found as a matter of policy that there is a price to pay in allowing for  
imprecision of a patent that becomes a public nuisance:  
The patent system is designed to advance research and  
development and to encourage broader economic activity.  
Achievement of these objectives is undermined however if  
competitors fear to tread in the vicinity of the patent because its  
scope lacks a reasonable measure of precision and certainty. A  
patent of uncertain scope becomes a public nuisance(R.C.A.  
Photophone, Ld. V. Gaumont-British Picture Corps. (1936), 53  
R.P.C. 167 (Eng. C.A.), at p. 195). Potential competitors are deterred  
from working in areas that are not in fact covered by the patent even  
Page: 220  
though costly and protracted litigation (which in the case of patent  
disputes can be very costly and protracted indeed) might confirm  
that what the competitors propose to do is entirely lawful. Potential  
investment is lost or otherwise directed. Competition is chilled.  
The patent owner is getting more of a monopoly than the public  
bargained for. There is a high economic cost attached to uncertainty  
and it is the proper policy of patent law to keep it to a minimum.  
(Free World Trust, para 42)  
[My emphasis]  
[552] More than one hundred years ago, the dangers of uncertainty caused by ambiguity were  
described aptly by the House of Lords:  
There seems to be some danger of the well known rule of law  
against ambiguity being in practice invaded. Some of those who  
draft specifications and claims are apt to treat this industry as a trial  
of skill, in which the object is to make the claim very wide upon one  
interpretation of it in order to prevent as many people as possible  
from competing with the patentee’s business, and then to rely upon  
carefully prepared sentences in the specification which, it is hoped,  
will be just enough to limit the claim within safe dimensions if it is  
attacked in court. This leads to litigation as to the construction of  
specifications, which could generally be avoided if at the outset a  
sincere attempt were made to state exactly what was meant in plain  
language. The fear of a costly law suit is apt to deter any but wealthy  
competitors from contesting a patent. This is all wrong. It is an abuse  
which a court can prevent, whether a charge of ambiguity is or is not  
raised on the pleadings, because it affects the public by practically  
enlarging the monopoly, and does so by a kind of pressure which is  
very objectionable. It is the duty of a patentee to state clearly and  
distinctly, either in direct words or by clear and distinct reference,  
the nature and limits of what he claims. If he uses language which,  
when fairly read, is avoidably obscure or ambiguous, the patent is  
invalid, whether the defect be due to design, or to carelessness, or to  
want of skill…  
I cannot see what purpose there could have been using the  
roundabout language here employed, which has provoked so much  
argumentative subtlety and taken up to much time, unless the object  
was to hold in reserve a variety of constructions for use if the Patent  
should be called in question, and in the meantime to frighten off  
those who might be disposed to challenge the Patent.  
Page: 221  
Natural Colour Kinematograph Co. v Bioschemes  
Ltd. (1915), 32 RPC 256 at 266  
It seems to me that the comments apply equally to sufficiency of disclosure. Indeed they apply to  
the whole disclosure.  
[553] AC argued that the broad ranges asserted by the three Patents cause difficulty to the skilled  
person, leading to the need for a great deal of experimentation before reaching a configuration that  
achieves the promised utility of better performance of the now reconfigured snowmobile.  
Although it is permissible to draft claims in terms of results, one runs the risk of running afoul of  
the famous bald menmetaphor. This all goes back to the fundamental principle that the patent  
must teach how to achieve the result, to put the invention into practice without having to undertake  
a minor research project. As stated in Free World Trust, what counts in the patent is not so much  
the desirable result but rather how to achieve the result:  
32  
…As stated, the ingenuity of the patent lies not in the  
identification of a desirable result but in teaching one particular  
means to achieve it. The claims cannot be stretched to allow the  
patentee to monopolize anything that achieves the desirable result. It  
is not legitimate, for example, to obtain a patent for a particular  
method that grows hair on bald men and thereafter claim that  
anything that grows hair on bald men infringes. …  
The invention is with respect to the design and construction of a snowmobile. However, the  
Patents are drafted such that the inventor claims that the new configuration will result in the  
snowmobile’s rider sitting in a position that will have some characteristics. Because the result of  
the invention is a number of measurements and angles, once those results are found on other  
snowmobiles, they are said to be infringing the Patents. However, AC argues that we are taken to  
Page: 222  
the bald menmetaphor in that, having an invention concerned with design and construction of a  
snowmobile (method of growing hair on bald men), all of a sudden anything that gets within same  
measurements (anything that grows hair) infringes. I share that view.  
[554] Somewhat surprisingly, BRP argues little concerning what it refers to as other grounds of  
invalidity. The three Patents do not claim a result: rather each patent claims a snowmobile  
configuration in order to improve the rider’s comfort and control over the snowmobile. The 106  
Patent, 813 Patent and 964 Patent all claim a particular configuration, but with different  
characteristics in how the rider would be repositioned:  
a)  
b)  
c)  
the seating, steering and footrest positions are arranged such that the center of gravity  
of the rider will be closer to the center of gravity of the snowmobile in comparison to  
the conventional snowmobile (106 Patent);  
the same positions define a triangle which has ranges of angles such that the center of  
gravity of the rider is closer to the center of gravity of the snowmobile in comparison  
to the conventional snowmobile (813 Patent);  
the hips, knees and ankles of the rider are positioned in relation to one another  
differently compared to a conventional snowmobile (964 Patent).  
[555] As I understand the position taken by BRP, these measurements must be sufficient to put  
the invention into practice. They must show the limits of the Patents such that the competition is  
put on notice. The Patents answer the questions, What the invention is?and How it works?.  
The proof of that advanced by BRP is that AC, as a person of skill in the art, clearly knew at all  
relevant time how to build a snowmobile in relation to a steering position, a seat position and a  
footrest(memorandum of fact and law, paras 807 and 809). The exact same and only argument  
was offered during oral argument (transcripts, April 16, 2015, p. 248 and 250). The person skilled  
Page: 223  
in the art will know how to build a snowmobile. It was also the unsuccessful defence offered by  
Pfizer in Teva (para 75). It is not successful here either.  
[556] With all due respect, that falls way short of the mark given the AC argument. Justice Roger  
Hughes put it in his usual colourful way in Ratiopharm Inc. v Pfizer Limited, 2009 FC 711, 76  
CPR (4th) 241:  
[155] To a great extent, these issues are intertwined. Lawyers are  
keen to put labels on things, cite snippets of law and confine issues  
to the labels and snippets. This is not new, two centuries ago actions  
would fail if not pleaded in the right way, trover instead of replevin  
and so forth. The simple facts of this case are that Pfizer developed  
its amlodipine drug through a routine pre-formulatopn [sic]  
procedure in which a common procedure called a salt screen was  
conducted. As a result of that salt screen of the seven or so salts  
tested besylate was selected as the preferred salt. It was not clearly  
superior to three or four others tested particularly those of the  
sulphonate group (besylate, mesylate, napsylate, tosylate) but was  
chosen as a reasonable compromise. Some executive made a  
decision to seek patent protection. The inventors recommended the  
besylate , the tosylate and, possibly the mesylate for that purpose.  
The patent department singled out the besylate only , mixed data  
from some tests with data from other tests, put in data that cannot be  
found anywhere in the evidence and left out data favourable to other  
salts while using words such as unique and outstanding and  
particularly suitable when referring to the besylate-words the  
inventors never used. This is the essence of the facts when it comes  
to assessing validity on a number of legal bases.  
[156] The Courts have discussed in various decisions what is  
required of a person who, believing they have made an invention,  
must do in order to obtain a valid patent. They must:  
1.  
Have made an invention, something that would not have  
been obvious to a person skilled in the art (Obviousness  
and Invention);  
2.  
The invention must be new. If it has been previously  
disclosed in such a way as to enable a person skilled in the  
art to understand the invention as previously disclosed, no  
valid patent can be granted (Novelty);  
Page: 224  
3.  
4.  
The invention as promised in the specification must live  
up to that promise. It must have the promised utility  
(Utility);  
The invention must be fully and correctly disclosed as  
contemplated by the inventors in a way that a person  
skilled in the art could read the patent and put the  
invention into practice (Disclosure); and  
5.  
The patent specification cannot mislead a person skilled in  
the art (Section 53).  
The issues are always intertwined. Justice Michael Phelan made the same point in Sanofi-Aventis  
Canada Inc. v Ratiopharm Inc., 2010 FC 230, 82 CPR (4th) 414:  
[51] As mentioned earlier, this attempt at creating watertight  
compartments when the arguments and evidence overlap to a  
significant extent suggests that the better approach is that of the  
“seamless garment of the law” approach adopted by Justice  
Harrington in Purdue Pharma v. Pharmascience Inc., 2009 FC 726.  
[52] The basic arguments are whether the invention disclosed a  
novel invention in relation to Irbesartan and in so doing whether it  
gave enough detail and parameters to be valid.  
[My emphasis]  
Here, the issue raised by AC is essentially the same. It has complained in various ways about the  
Patents not disclosing an invention, the specifications being ambiguous and insufficient to  
understand the Patents and put them into practice. Are there enough details and parameters to  
know what the invention is and to put the invention into practice? In my view, there can be only  
one answer. No.  
[557] We should start with the obvious. The Patent Act provides for the requirements of the  
specification.  
Page: 225  
[558] I have reproduced at some length the evidence about the difficulty encountered in building  
the prototypes of the REV (see paras 129, 139, 146 and 161 of these reasons), as well as the  
evidence concerning the creation of what eventually became the 106 and 813 Patents. Finally, I  
have described in some details the great number of claims involved in this case. At the end of the  
day, I cannot accept that something that complex and without guidance gives enough details and,  
more importantly, parameters, to be valid. We do not know with any precision what is the  
invention claimed or how it can be used.  
[559] Furthermore, section 36 confirms that each patent contains just one invention. Thus, we are  
not to consider together the three Patents to see if, put together, they would provide details and  
parameters to conclude that each is valid because the collection of specifications enables a person  
skilled in the art to make, construct or use it. Each of the three Patents stands on its own. Each  
must disclose enough to make the thing, the invention.  
[560] In my view, the Patents-in-suit suffer from ambiguity and insufficiency. Although the  
Patents claim as redesigned a snowmobile with a new construction, nothing is said about how the  
new snowmobile ought to be redesigned with its components organized differently in its  
construction. In fact, nothing is said about what the reconfiguration is. The nature of the invention  
is that once reconfigured, the rider would be sitting in a different position. But the Patents are  
silent as to how much of a change constitutes a reconfiguration. There is no indication as to what  
were the measurements on a conventional snowmobile such that the skilled person could see what  
difference is contemplated. So, what is that new construction of a snowmobile? The Patents leave  
Page: 226  
that ambiguous. The same can be said about the actual construction of the snowmobile in spite of  
the fact that the invention is concerned with the construction of a snowmobile.  
[561] BRP’s contention and only argument is that the disclosure must have been sufficient since  
AC was able to build a snowmobile that ran afoul of the inventions. With respect, this is beside the  
point. Ever since Consolboard, the law has been clear that the specification alone is to be used to  
put the invention into practice, without the assistance of a minor research project. The same kind  
of argument was specifically rejected in Teva at paragraph 75.  
[562] In fact, there is uncontradicted evidence that manufacturers in this industry follow the  
practice of acquiring products of the competition to ascertain how they are constructed. Among  
many is the statement of Kevin Breen, the BRP expert, during his cross-examination about how to  
use the Patents to reconfigure a traditional snowmobile into the invention:  
COUNSEL: So the person skilled in the art in order to help --  
to figure out what the invention is here, is needing to dismantle a  
snowmobile if they want to use an ATD to figure out where the rider  
and how the rider is sitting?  
MR. BREEN: Here, that’s pretty standard design process. You  
buy competitive products, sort to speak, and bench them. You take  
them apart and find out how they’re constructed and look at your  
design. It’s happening every day in the automobile industry.  
(transcripts, March 24, 2015, p. 46-47)  
Comments to that same effect were offered by Brad Darling and Troy Halvorson.The simple fact  
that AC was able to build a snowmobile with a new configuration does not mean that it was done  
based on the specification alone. The evidence of Mr. Breen contradicts such an assertion. It is also  
common sense.  
Page: 227  
[563] Mr. Warner testifies to the effect that, if at all possible, it would take the skilled person  
months or years to go through all the steps needed to figure out the invention using only the  
specification. Mr. Warner, in his report (D-107), notes that the only structural change in the 106  
Patent is moving the steering device forward, a change that is not even claimed. The structural  
components of a snowmobile are recited in the Patents, but there is no indication to be found in the  
Patents of what the structural redesign has to be: what happens to the engine, the gas tank, the  
track, the tunnel, etc. The expert states that the patent seeks to claim only the result of any  
proposed arrangement i.e. the position of the rider(D-107, para 128). He says at paragraph 129  
that there is no numerical comparison in the 106 Patent of the position of the rider on the  
snowmobile of the position of the rider on the snowmobile of the 106 Patent as compared to the  
conventionalsnowmobile.The same can be said of course of the sister Patent 813 and of the  
964 Patent (para 233). Surprisingly, in my estimation, that important evidence is not even  
seriously challenged by the Plaintiff.  
[564] Mr. Breen appears to have largely ignored the issue in his report on invalidity (P-114).  
However, he was subjected to cross-examination on how, using exclusively the Patents, the skilled  
person would be able to reconfigure a snowmobile (transcripts, March 24, 2015, p. 44-51). I could  
not find anything that would contradict Mr. Warner’s assertions about the experimentation needed  
to ascertain, based on the Patents alone, the new invention which concerns the overall design and  
construction of a snowmobile(106 Patent, p.1, line 1; 813 Patent, p. 1, line 1; 964 Patent, p. 1,  
line 1). Rather, Mr. Breen spoke of an iterative process (p. 45).  
Page: 228  
[565] I have also been somewhat taken aback by the evidence of the patent lawyer employed at  
the time by BRP. Mr. Cutler explained carefully at trial how the 106 and 813 Patents came about.  
[566] On cross-examination, it was established that it is one of the inventors, Mr. Bruno  
Girouard, who would have gone away and performed the measurements which ended up in the 106  
and 813 Patents. However, it appears that the taking of the measurements was not supervised, and  
it was certainly not supervised by the patent agent. It is in fact uncertain how the measurements  
were taken as Mr. Girouard testified that the only records of those measurements that are in the  
end so important are those in the Patents. This exchange between counsel for AC and Mr. Cutler is  
telling:  
COUNSEL: And the numbers that are included in there, were  
those the idea of Mr. Karceski as well?  
MR. CUTLER: No, they were calculated by Bruno. He was  
given instructions to sort of have what is the maximum range and  
then what is more preferred range and what is better, and what is  
better, and what is better. So the structure of how that’s drafted was  
us, but the actual numbers were not -- were not from us, they’re  
from Bruno.  
COUNSEL: And you don’t know if those numbers came from  
actual measurements that Mr. Girouard made on the snowmobile?  
MR. CUTLER: No, you’d have to ask Bruno how he got them.  
COUNSEL: Okay. You were just given numbers?  
MR. CUTLER: That’s correct, yes.  
COUNSEL: As you mentioned that you had drafted, if I’m  
understanding correctly, a patent application and then you went and  
had the discussion about the standard and went to look for the  
standard, but you had an application in hand at that time, if I  
understood your testimony?  
MR. CUTLER: We had sort of a skeleton or a draft of what we  
wanted to put in because this was sort of, you know, it wasn’t a bake  
Page: 229  
the cake and put it in the oven, it was more of a Jeff was coming  
every week and sort of we were revising and every week it got sort  
of more and more detailed.  
COUNSEL: But at that time you had an application with  
numbers in it, you had different measurements that you were going  
to include in the patent application?  
MR. CUTLER: Not before we would have had the standard,  
because Bruno needed the standard to make the measurements -- or  
at least his instructions were to make the measurements from the  
standard. But as I said, I don’t know what he actually did, so -- like I  
wasn’t there when he did it, but you would have to ask him what he  
actually did to -- when he had the standard and the instructions and  
how he got the numbers.  
(transcripts, February 17, 2015, p. 91-92)  
The point of the matter is this. The idea has been that the measurements would allow the person  
skilled in the art to practice the invention based on those measurements. Given the evidence led in  
this trial, it is a mystery to me how that can be accomplished. However, on top of that, there is the  
difficulty posed by measurements the value of which is uncertain. How does someone know that  
this measurement is supposed to produce that configuration? Mr. Warner says that you will have to  
try many times. Mr. Breen says that it is an iterative process. No evidence clarified things.  
[567] We can compare this process of trying to figure out the configuration of a new snowmobile  
with the Supreme Court decision in Teva where the inadequate disclosure was that “there was no  
basis for a skilled person to determine which of Claim 6 and Claim 7 contained the useful  
compound. Pfizer’s own expert witness admitted that a person skilled in the art who read the  
patent would not know which compound was shown by the study to be useful in treating ED.”  
(para 79) That appears to be similar to a research project that would have to be undertaken if one is  
to judge by the following exchange between counsel for AC and Mr. Breen:  
Page: 230  
COUNSEL: And how do you deal with the ranges in the  
claims, Mr. Breen? So they’re not -- it's not one number, it doesn’t  
say the distance between the foremost drive track axle and the centre  
of gravity of the rider is one specific number. There’s [sic] ranges of  
numbers. So how do you figure out how that plays into it in terms of  
the snowmobile configuration?  
MR. BREEN: I guess again it’s an iterative process where I  
look at the broadest, make adjustments until I end up with the  
narrowest.  
COUNSEL: Okay. So you would have to go through the 20  
measurements in the 106 patent first, then you would have to go  
through all the ranges in those 20 measurements all to try to figure  
out what the snowmobile configuration is?  
MR. BREEN: If you wanted to build one, yes.  
COUNSEL: If you wanted to understand what the  
configuration is, where the components are, that’s what you’d need  
to do, wouldn’t it?  
MR. BREEN: Well, it’s one way to do it.  
COUNSEL: That’s one way you talk about in your report?  
MR. BREEN: Yes.  
(transcripts, March 24, 2015, p. 49-50)  
[568] In this case, the weight of the evidence favours clearly the proposition that the disclosure  
does not tell the skilled person how to reconfigure the snowmobile what even that reconfiguration  
may be. It is not insignificant that the evidence of the inventors was to the effect that their original  
idea required a lot of work. From the Buckto the prototypes, they had to relocate the engine and  
the gas tank, adjust the steering. The best that is offered by BRP is that the skilled person will  
figure it out; Mr. Breen speaks of an iterative process to figure it out. There is no evidence that all  
a POSITA had to do is to take the measurements and that the invention describes the way it is  
produced (Pioneer Hi-Bred, p. 1638). The evidence of one of the inventors, Mr. Girouard, is clear  
Page: 231  
that the construction of the new snowmobile required multiple changes to the components. What is  
disclosed? Nothing. The only evidence in this case is not that the skilled person would have to  
undertake a minor research project, which is already too much (Teva, para 75). It is a major  
research project.  
[569] The absence of indication as to how the new snowmobile is constructed in order to  
facilitate the new position leads to the Patents claiming a result more than anything else.  
[570] Drafting claims in terms of desired result is not impermissible. Here the Patents are drafted  
on the same pattern. The invention is concerned with the overall design and construction of a  
snowmobile such that the rider will be seated toward the front. That is the result that will be  
achieved by the invention. That, we are told, will result in different measurements and angles.  
However, if limited to the result, it is doubtful that they will teach how the result is achieved,  
which is what is required: As stated, the ingenuity of the patent lies not in the identification of a  
desirable result but in teaching one particular means to achieve it.(Free World Trust, para 32)  
The problem in this case is that the rider’s forward position, which is manifested by some  
measurements according to the inventors, never teaches how the configuration will be obtained or,  
for that matter, whether the measurements are a valid prediction of a new configuration. I accept  
the evidence of Mr. Warner about the lack of information. His paragraph 233 of his report (D-107)  
is a good illustration of the only evidence presented:  
233. There is no discussion in the 964 Patent as to any change in  
the seat of the snowmobile that provides the hips being raised  
relative to the knees. Similarly, there is no change described  
to the running boards/sideboards of the snowmobile that  
provides for the ankles to be positioned behind the knees. The  
only structural change described in the 964 Patent is the  
Page: 232  
movement of the steering device and steering position more  
forward (which was already discussed in the other BRP  
Patents). It would not be clear to the person skilled in the art  
how the snowmobile has been redesigned to cause a change  
in the relationship between the hips, knees and ankles. The  
person skilled in the art would be further confused by the  
claimed redesign because they would be aware of riders  
having their hips above their knees and their ankles behind  
their knees while riding prior art snowmobiles, as will be  
discussed further below.  
[571] I also accept that the scope of the measurements and the combination of measurements are  
not dealt with in the Patents. In the absence of any compelling evidence to the contrary, and in  
view of my own observations, I accept that it would be very difficult for the skilled person to  
appreciate the measurements and, more importantly, how they translate into the rider’s position on  
the snowmobile. The disclosure is simply insufficient.  
[572] In this case, each Patent relates to the configuration of a snowmobile that would satisfy  
some measurements. That does not sufficiently describe the invention and does not allow a person  
skilled in the art to put the invention into practice, to define the way is produced or builtin the  
words of the Pioneer Hi-Bred Court. As that Court said:  
The description must be such as to enable a person skilled in the art or  
the field of the invention to produce it using only the instructions  
contained in the disclosure.  
(p. 1638)  
There are no instructions here. The evidence of Mr. Breen seems to me to be compelling:  
COUNSEL: And which measurements are they using, Mr.  
Breen, because there is about 15, 20 measurements in the patent? So  
which one are they using when they’re trying to figure out what the  
Page: 233  
construction is? Are they trying to look at all of the measurements or  
some of them? Which ones are they looking at?  
MR. BREEN: As I said, it’s an iterative process. Eventually  
you’d look at all of them. You’d start to move this here, measure  
this, move this, measure that, so that eventually you kind of build the  
thing until you end up with having taken into account all the  
measurements.  
COUNSEL: Okay, so you’d have to go through all the  
measurements in the 106 patent, for example, ultimately?  
MR. BREEN: If your goal is to construct a snowmobile that’s  
consistent with that, you’d have to check.  
COUNSEL: So if your goal is to understand what the  
snowmobile is of the invention you would have to go through all of  
those measurements?  
MR. BREEN: Conceptually, yes.  
COUNSEL: Okay, and you can’t say here whether or not in  
going through all those measurements that would represent a  
consistent position? You might -- that might require changes and  
modifications as you go through all those measurements?  
MR. BREEN: I would think it would. That’s the whole idea.  
The patents talk about narrowing ranges, there is interaction between  
the various component parts. I think it’s something that’s going to be  
an iterative process. I think I described that in my first report.  
COUNSEL: So iterative process, and we don’t know what  
the result would be standing here today?  
MR. BREEN: I guess not for something like that.  
COUNSEL: You’ve not done that process to try and figure  
out what these inventions are? You’ve not taken the snowmobile and  
tried to do this, have you?  
MR. BREEN: No, I’ve measured other snowmobiles to see --  
or looked at the measurements done by Mr. Larson of the other  
snowmobiles, but I haven’t taken them apart and built a snowmobile  
from scratch.  
(transcripts, March 24, 2015, p.47-48)  
Page: 234  
In Teva, a skilled reader was unable to identify between a pair of claimed compounds. The  
disclosure was held to be insufficient. The fact that the skilled person would have to perform  
experiments to determine which compound treated erectile dysfunction was enough to conclude  
that the specification was insufficient. The skilled person could determine which of two  
compounds was the invention from reading the patent. The evidence in this case is in my view  
obscure as in Teva. The Patents are invalid by reason of insufficiency and ambiguity.  
F.  
The 964 Patent: other invalidity arguments  
[573] The Defendants raised issues specific to the 964 Patent. They claim there was material  
misrepresentation, the 964 Patent would be anticipated by the 106 Patent and the 813 Patent and  
there was prior public disclosure.  
(1)  
Material misrepresentation  
[574] AC compares figure 1 in the 106 Patent (and in the 813 Patent) with figure 1 in the 964  
Patent. These figures present ostensibly the prior art with the position taken by the rider. There is  
no doubt that there are differences. As I understand it, AC’s argument is to say that the difference  
in the rider’s position is accentuated in the 964 Patent such that the difference between the  
conventional snowmobile and the reconfigured snowmobile is presented as being even more  
dramatic (AC’s memorandum on invalidity, para 1047).  
   
Page: 235  
[575] BRP’s response is to explain that the two snowmobiles used in the 106 Patent and the 964  
Patent are simply two different snowmobiles having different platforms. One is the 1999 Ski-Doo  
Model MXZ 440, 500 or 670 HO built on a S2000 platform while the other is a 1999 Ski-Doo  
Model MXZ 600 built on a ZX platform. There is no misrepresentation as both figures depict the  
conventional rider position on a snowmobile. At any rate claims BRP, that would not have had any  
influence on the issuance of the 964 Patent. The figure merely illustrates the difference between  
snowmobile configurations through the relationship of the hips, knees and ankles which are  
represented.  
[576] Subsection 53 (1) of the Patent Act provides that the patent is void if there is a material  
allegation that is untrue. It reads:  
Void in certain cases, or valid Nul en certains cas, ou valide  
only for parts  
en partie seulement  
53 (1) A patent is void if any  
material allegation in the  
petition of the applicant in  
respect of the patent is untrue,  
or if the specification and  
drawings contain more or less  
than is necessary for obtaining  
the end for which they purport  
53 (1) Le brevet est nul si la  
pétition du demandeur, relative  
à ce brevet, contient quelque  
allégation importante qui n’est  
pas conforme à la vérité, ou si  
le mémoire descriptif et les  
dessins contiennent plus ou  
moins qu’il n’est nécessaire  
to be made, and the omission or pour démontrer ce qu’ils sont  
addition is wilfully made for  
the purpose of misleading.  
censés démontrer, et si  
l’omission ou l’addition est  
volontairement faite pour  
induire en erreur.  
[577] The parties do not dispute that whether or not there is material misrepresentation is to be  
decided on a case-by-case basis as it is fact specific (Corlac Inc. v Weatherford Canada Inc., 2011  
Page: 236  
FCA 228, at para 126). The test is whether or not the misrepresentation made a difference to the  
issuance of the patent.  
[578] In the case at hand, it has not been proven that there was a misrepresentation, let alone a  
material one. It is rather another example of some carelessness that generated unneeded ambiguity  
where comparing various instruments. Even if the Court accepts Mr. Warner’s testimony that it  
would have been possible to sit the rider of figure one of the 964 Patent in a position closer to that  
in figure one of the 106 Patent, that can hardly be seen as a misrepresentation. Whether or not the  
position of the knees, shown above the hips in the 964 figure, is accentuated compared to the 106  
Patent, that does not change the fundamental proposition that the hips on the reconfigured  
snowmobile would be above the knees.  
(2)  
The 964 Patent is anticipated by the 106 Patent and the 813 Patent  
[579] This time, the Defendants argue that the claims of the 964 Patent are concerned with the  
general proposition that the new configuration produces the hips above the knees and the ankles  
behind the knees. This would be shown in the figures of the 106 and 813 Patents. That would  
constitute anticipation.  
[580] The evidence offered by AC falls short of what would be required to show anticipation.  
Both in oral argument and in their memorandum of fact and law, the Defendants suggest that the  
measurements could be taken from the figures in the two others Patents. We shall never know if  
that is even possible because no such evidence was led. The evidence of Mr. Warner is so thin (in  
 
Page: 237  
effect, one paragraph out of 377 paragraphs in D-107) as to be more impressionistic and in the  
nature of an afterthought.  
(3)  
Prior public disclosure  
[581] This is another one of those last-ditch efforts. Here, AC speculates that because BRP tested  
its prototypes of the REV snowmobiles on trails accessible to the public, that, in and of itself,  
constitutes public disclosure because someone could have witnessed the rider’s hips above his  
knees, and the ankles behind the knees, and the hips behind the ankles.  
[582] There is not even a suggestion by AC that the use of public trails was anything but for  
reasonable experimentation. Since at least 1904, our law has recognized the need to experiment in  
order to bring the invention to perfection [Conway]. This exception was recognised recently by our  
Court. In this case, the evidence is that BRP was conscious of the need for confidentiality and took  
steps to ensure it would be protected. The experimentation was necessary in view of the many uses  
that would be available for that new configuration. Actually, AC did not address at all the well-  
recognized experimental use exception, making its argument on the sole basis that prototypes were  
out on public trails and that a passerby would have been able to identify the positioning. In my  
view, the experimental use exception would suffice to dispose of that argument.  
[583] But there is more. The Court is less than persuaded that the public disclosure contemplated  
here would have provided any enablement. As in Bauer, there is little information that is made  
available to the public while riding the snowmobile on a trail, even for the person skilled in the art.  
The necessary information to enable is not made available. The invention disclosed in the Patents  
 
Page: 238  
is not understood, its parameters are not accessible and it would not be possible to reproduce the  
invention on the simple basis that a snowmobile has been seen on a trail (Varco Canada Limited v  
Pason Systems Corp, 2013 FC 750, Bauer, para 215 and following).  
[584] As a result, there was no material misrepresentation, prior public disclosure or anticipation  
of the 964 Patent by the 106 and 813 Patents.  
VII. Objections  
[585] Over the course of the trial, a number of objections were made by the parties to the  
admissibility of some evidence. These objections fell in four categories:  
i) reply evidence of experts;  
ii) introduction of documents not found in the affidavit of documents;  
iii) admissibility of expert reports containing assertions on questions of law;  
iv) admissibility of reports concerning testing conducted in spite of the absence of one party.  
[586] The first two categories will be dealt with in short order. As for the other two, they have  
been the subject of more formal motions and have been argued at length.  
 
Page: 239  
A.  
Reply evidence and documents not listed in affidavits of documents  
[587] First, as for the reply evidence of experts, AC took the view that many of the expert reports  
presented in reply by BRP did not properly qualify as reply, as they were not responsive to new  
issues raised by expert report offered by AC in response to the initial reports presented by BRP.  
The Court proceeded in each case to an examination of the impugned paragraphs.  
[588] In every case, the Court applied the test in R. v Krause, [1986] 2 SCR 466 rigorously. It is  
articulated thus at page 474:  
The plaintiff of the Crown may be allowed to call evidence  
in rebuttal after completion of the defence case, where the  
defence has raised some new matter or defence which the  
Crown has had no opportunity to deal with and which the  
Crown or the plaintiff could not reasonably have anticipated.  
But rebuttal will not be permitted regarding matters which  
merely confirm or reinforce earlier evidence adduced in the  
Crown’s case which could have been brought before the  
defence was made. It will be permitted only when it is  
necessary to insure that at the end of the day each party will  
have had an equal opportunity to hear and respond to the full  
submissions of the other.  
[589] As a result of the application of the test, counsel withdrew paragraphs and objections. The  
Court ruled on a number of objections in open court.  
[590] Similarly, some objections were raised early on about some documents which would not  
have been strictly listed in affidavits of documents. The matter was resolved by allowing  
admissibility as long as there was no abuse, and none was found, and subject to allowing time to  
cross-examine and respond if there was such a need (Halford v Seed Hawk Inc., 2001 FCT 1195 at  
 
Page: 240  
para 7, 16 CPR (4th) 204). In the end, there was not any issue that was left unattended as the  
evidence needed to address the matters raised in this case was ultimately entered.  
B.  
Questions of law and testing  
[591] Prior to the Court hearing testimony from Mr. Breen, counsel for Arctic Cat filed a motion  
to challenge the admissibility of certain paragraphs and attachments to his Expert Report. This  
constitutes the third category of objections. Specifically, counsel for AC request that paragraphs  
18, 19, 52(c), 72, 127, 254, 259-268, 273-284, 289-299, 304-314, 319-332, 337-348, 353-366,  
371-384, 386, 394-404, 409-415, 417-419, 424-426, 428-443, 451-452, 456-457, 464-478, 484-  
499, 501-508, 510-511, 513-514, 517-522, 525-530, 532-533, 536-537, 538-540, 542-543, 545-  
546, 548-549, 551-554, 561, 569-570, and attachments 3, 4, 7, 16, and 19 be found inadmissible in  
this proceeding. After hearing submissions from both parties, the Court indicated that it would rule  
formally on this objection as part of its reasons and judgment.  
[592] Arctic Cat claims that Mr. Breen opines on legal issues and makes conclusions of law.  
Arctic Cat complains of all the above-listed items other than attachments 3 and 4. As an expert  
witness, Mr. Breen is to assist the Court as a technical guide and not to provide opinions on legal  
issues of infringement and claim construction, as this amounts to a usurpation of the role of the  
Court: Halford v Seed Hawk Inc., 2001 FCT 1154 at para 24, 16 CPR (4th) 189; R. v Abbey,  
[1982] 2 SCR 24 at 42.  
[593] The fourth ground of objection relates solely to attachments 3 and 4. Attachments 3 and 4  
are reports produced by another expert witness, Mr. Robert Larson, which were provided to Mr.  
 
Page: 241  
Breen for the writing of his Expert Report. Each attachment relates to an Arctic Cat snowmobile  
that Mr. Larson assessed in 2012 (assessments of other AC snowmobiles on behalf of BRP were  
conducted after notice was given to AC; Counsel for AC chose to attend the measurements of 5 of  
the 15 snowmobiles measured in 2014). Arctic Cat argues that the assessments were tests that were  
conducted without notice to Arctic Cat and at which no representative of Arctic Cat was either  
invited to attend or was present. It submits that accepting evidence from what it considers to be  
testing conducted in such circumstances falls outside of both the practice of this Court and a  
Notice to the Parties and the Profession from the Chief Justice: Omark Industries (1960) Ltd. v  
Gouger Saw Chain Co., [1964] 1 Ex.C.R. 457 at para 204, 45 C.P.R. 169 [Omark]; The Dow  
Chemical Company v Nova Chemicals Corporation, 2012 FC 754 at para 58; The Honourable  
Paul Crampton, Notice to the Parties and the Profession, “Experimental Testing” (February 27,  
2014), online: <http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Notices/IP-  
experimental-testing>.  
[594] Unsurprisingly, BRP does not share the view that the portions of Mr. Breen’s Expert  
Report identified by Arctic Cat are inadmissible. Concerning the admissibility of reports  
containing assertions on questions of law, it argues that there is no rule of general application  
mandating the automatic exclusion of expert evidence following the decision of R. v Mohan,  
[1994] 2 SCR 9. It submits that the evidence is receivable, but that the Court is not bound by the  
statements made in the Report and is free to weigh the value of the evidence and then adopt or  
reject any if it as it sees fit: Xerox of Canada Ltd. v IBM Canada Ltd., [1977] FCJ No. 603 at para  
28, 33 C.P.R. (2d) 24 [Xerox]; Rucker Co. v Gravel’s Vulcanizing Ltd., [1985] FCJ No. 1031; 7  
CPR (3d) 294 at 315-316.  
Page: 242  
[595] On the last objections, BRP submits that the assessment conducted by Mr. Larson in 2012  
should not be characterized as experimental testing, but rather as the taking of certain  
measurements. BRP also relies on Omark, but to show that measurement data, unlike testing data,  
collected without the opposing party’s knowledge or presence need not be excluded: page 208.  
Furthermore, BRP argues that since the snowmobiles tested in attachments 3 and 4 were Arctic  
Cat machines, that company would have been better than able to conduct its own measurements if  
desired.  
[596] After considering the submissions and jurisprudence provided by the parties, the Court is  
of the view that the paragraphs and attachments objected to by Arctic Cat are not inadmissible.  
There is no rule of evidence or rule of the Court mandating that expert evidence must be excluded  
where the expert strays into the province of the Court by opining on the legal issues before the  
Court: see Mohan at pages 24 and 25. The rule excluding expert evidence that concerns the  
ultimate issue is no longer of general application. That, however, is not to suggest that the concern  
has disappeared. Indeed trial judges are particularly vigilant in trial with juries, where there exists  
the risk that the evidence of experts could overwhelm the trier of fact and distract the jury from  
their task. Anyhow, the Court is never bound by such opinion and remains solely responsible for  
determining the issues before it: Xerox at paragraph 28.  
[597] It follows that the weight to be given to the identified sections of the Expert Report remains  
to be assessed and the evidence does not escape probing scrutiny. The Supreme Court noted in  
Mohan at para 28, and the passage was specifically referred to in R. v J.-L. J., 2000 SCC 51 at para  
37, [2000] 2 SCR 600, that “[t]he closer the evidence approaches an opinion on an ultimate issue,  
Page: 243  
the stricter the application” of scrutiny it requires. As discussed in A. W. Bryant, S.N. Lederman,  
and M.K. Fuerst, The Law of Evidence in Canada (3rd ed. 2009) at §12.156 there are certain  
subject matters which go to the very heart of judicial decision-making and courts remain wary of  
expert witnesses providing advice as to how they should decide issues such as whether a witness is  
telling the truth or the meaning of English words.In a patent proceeding, expert testimony  
opining on the construction to be given to patent claims and whether infringement has occurred or  
not deserves such wariness and heightened scrutiny. On the other hand, an expert who testifies on  
the construction of patents or whether a patent has been infringed will inevitably come close to  
giving his view on the ultimate issue.  
[598] In his report, Mr. Breen crosses occasionally the line from being an expert witness offering  
information to assist the Court to being somewhat of a supporter of BRP’s position in the  
litigation. I add that he was not alone as experts for Arctic Cat also were guilty of degrees  
partisanship. For instance, Mr. Breen finds that the terms and language used in the claims of all  
the patents at issue are generally clear, unambiguous and would be readily understood by the  
persons skilled in the art(Expert Report of Kevin Breen at paragraph 71) and makes multiple  
conclusions that certain models of Arctic Cat snowmobiles infringe the Patents (e.g., his  
conclusion at paragraph 289 that [a]ll Twin Spar models measured fall within the scope of claim  
20 of the 106 patent. Therefore, claim 20 of the 106 Patent is infringed …”). However, these  
conclusions are merely a recognition that, according to the measurements made and on which he  
relied, the said measurements fell within the range set in the claims being examined.  
Page: 244  
[599] As to the last objection, the Court is also of the view that the evidence contained in  
attachments 3 and 4 of Mr. Breen’s Expert Report should not be excluded. As in Omark, there is  
an element of measurement present in the assessment undertaken by Mr. Larson, rather than a  
purely experimental testing. To put it in another way, Arctic Cat never made the case that the  
measurements taken were in the nature of experiments in experimental testing. The bold assertion  
that measurements are experimental testing fell short of the mark.  
[600] Furthermore, during an examination for discovery conducted January 22, 2014, where the  
2012 assessments by Mr. Larson were discussed, counsel for BRP [Mr. Nitoslawski] offered to  
redo it if counsel for Arctic Cat [Ms. Furlanetto] had any questions. The following excerpt reflects  
this offer:  
Ms. ANGELA M. FURLANETTO:  
Arctic Cat was not invited to attend the testing?  
Mr. MAREK NITOSLAWSKI:  
You can go on the record to say that.  
Ms. ANGELA M. FURLANETTO:  
So the answer is no, they were not?  
Mr. MAREK NITOSLAWSKI:  
No, they were not, but if Arctic Cat has any questions about the  
testing we could redo them with Arctic Cat present, as well.  
[601] Given the failure of Arctic Cat to take BRP up on this invitation, the Court finds it difficult  
to sanction and exclude the evidence in question.  
Page: 245  
[602] Finally, the jurisprudence and notice to the parties and to the profession speak to the  
general practice of the Court and not to a rule of the Court or to a rule of evidence that mandates  
the automatic exclusion of the testing evidence. As noted by Justice Hughes in Abbvie  
Corporation v Janssen Inc., 2014 FC 55 at para 64 [Abbvie], there is no rule in the Federal Courts  
Rules, S.O.R./98-106 specifically directed to the admissibility of experimental testing. The  
common law rules of evidence do require the exclusion of evidence where the prejudicial effect of  
that evidence surpasses its probative value: see, for example, R. v Ferris, [1994] 3 SCR 756;  
Harmony Consulting Ltd. v G A Foss Transport Ltd., 2012 FCA 226 at para 101.  
[603] This is not such a case where the possible prejudicial effect in admitting attachments 3 and  
4 exceeds the probative value in those documents. This is especially so given that the evidence in  
question relates more to measurement than to experimental testing and that Arctic Cat had ample  
opportunity either to ask questions of BRP regarding the assessments and to have them redone, or  
to conduct its own measurements or tests. Where a party could have performed [its own  
measurements] in the same manner with a similar comparatorthe Court is not inclined to reject  
the evidence before it: Omark at page 228; see also Abbvie at para70 and Apotex Inc. v Pfizer  
Canada Inc., 2013 FC 493 at para 39. The snowmobiles assessed in attachments 3 and 4 were  
manufactured by Arctic Cat and there is no evidence before this Court that the company did not  
have models of its own to measure. Indeed, the 17 snowmobiles measured by BRP were sent to the  
expert retained by Arctic Cat. The evidence from attachments 3 and 4 is, accordingly, admissible  
in this proceeding subject to determinations of weight and value.  
Page: 246  
VIII. Conclusion  
[604] As in Teva, this Court has reached the conclusion that the 106 Patent, the 813 Patent and  
the 964 Patent do not comply with s. 27(3) of the Patent Act in that their disclosure does not meet  
the conditions that they describe the invention and define the way they are produced or built. The  
Patents are concerned with the design and the construction of a snowmobile, yet they say very  
little about the snowmobile, its design and construction, relying instead on the results the inventors  
claim will be produced by the new configuration in terms of the positioning of the standard rider.  
The reader does not know what is invented other than a snowmobile that has a new design and  
construction. How does that help that the three Patents declare that an exhaustive description of  
each and every component is not provided, only a description of those elements required for an  
understanding of the present invention.  
[605] Furthermore, the Patents-in-suit do not describe how the inventions are put into operation.  
The inventors claim a snowmobile. The only information provided is a number of measurements,  
without any indication in the nature of setting out clearly the method of constructing that new  
snowmobile. The fact that the various measurements are provided by the inventors in ranges  
compounds the difficulty. The Supreme Court in Pioneer Hi-Bred was satisfied that the failure to  
describe how the invention is put into operation results in invalidity for insufficiency. That was  
fully endorsed in Teva:  
[84] Although s. 27 does not specify a remedy for insufficient  
disclosure, the logical consequence of a failure to properly disclose  
the invention and how it works would be to deem the patent in  
question invalid. This flows from the quid pro quo principle  
underpinning the Act. If there is no quid proper disclosure —  
then there can be no quo exclusive monopoly rights.  
 
Page: 247  
[606] As for the 4th patent, the 264 Patent, the Court concludes that it was not infringed by Arctic  
Cat because the accused snowmobiles have not been shown to have one of the essential elements  
of the invention as claimed, the engine cradle of the 264 Patent.  
[607] As a result, the action in infringement of the 106 Patent, the 813 Patent, the 964 Patent and  
the 264 Patent of Bombardier Recreational Products Inc. against Arctic Cat Inc. and Arctic Cat  
Sales Ltd. is dismissed with costs. The parties have indicated to the Court that they wish to make  
specific submissions on costs after a decision has been rendered.  
Page: 248  
JUDGMENT  
THIS COURT’S JUDGMENT is that  
1. The action in infringement is dismissed;  
2. A declaration is made that Arctic Cat does not infringe the asserted claims of  
the 264 Patent;  
3. A declaration is made that the asserted claims of the 106, 813 and 964 Patents  
are and have been invalid and void;  
4. A direction is hereby issued to the Commissioner of Patents to make an entry  
to that effect;  
5. Arctic Cat is entitled to its costs. The parties are invited to offer submissions  
on costs, limited to five pages, within 20 days from the issuance of this  
Judgment.  
"Yvan Roy"  
Judge  
FEDERAL COURT  
SOLICITORS OF RECORD  
T-2025-11  
DOCKET:  
BOMBARDIER RECREATIONAL PRODUCTS INC. v  
ARCTIC CAT INC. AND ARCTIC CAT SALES INC.  
STYLE OF CAUSE:  
MONTREAL, QUEBEC  
PLACE OF HEARING:  
DATE OF HEARING:  
FEBRUARY 2, 3, 4, 5, 9, 10, 11, 12, 17, 18, 19, 20, 23, 24,  
25 AND 26; MARCH 2, 3, 4, 5, 9, 10, 11, 12, 17, 18, 19,  
20, 23, 24, 25, 26, 30 AND 31; APRIL 1, 2, 13, 14, 15  
AND 16 2015  
ROY J.  
PUBLIC JUDGMENT AND  
REASONS:  
FEBRUARY 24, 2017  
DATED:  
APPEARANCES:  
Marek Nitoslawski  
David Turgeon  
FOR THE PLAINTIFF  
Christian Leblanc  
Joanie Lapalme  
Ron Dimock  
FOR THE DEFENDANTS  
Angela Furlanetto  
Vincent Man  
Bentley Gaikis  
SOLICITORS OF RECORD:  
Fasken Martineau DuMoulin, LLP  
Montreal, Quebec  
FOR THE PLAINTIFF  
DLA Piper (Canada) LLP  
Toronto, Ontario  
FOR THE DEFENDANTS  


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