Page: 27
2000 SCC 66, [2000] 2 S.C.R. 1024 at paras. 31-67 [Free World
Trust]; Consolboard Inc. v. MacMillan Bloedel (Sask.) Ltd., 1981
15 (SCC), [1981] 1 S.C.R. 504 at p. 520 [Consolboard]).
These principles can be summarized as follows.
[31] The Patent Act promotes adherence to the language of the
claims, which in turn promotes fairness and predictability (Free
World Trust at paras. 31(a), (b) and 41). The words of the claims
must, however, be read in an informed and purposive way (at para.
31(c)), with a mind willing to understand (at para. 44). On a
purposive construction, it will be apparent that some elements of the
claimed invention are essential while others are non-essential (at
para. 31(e)). The interpretative task of the court, in claim
construction, is to separate and distinguish between the essential and
the non-essential elements, and to give the legal protection to which
the holder of a valid patent is entitled only to the essential elements
(at para. 15).
[32] To identify these elements, the claim language must be read
through the eyes of a POSITA, in light of the latter’s common
general knowledge (Free World Trust at paras. 44-45; see also Frac
Shack at para. 60; Whirlpool at para. 53). As noted in Free World
Trust:
[51] …The words chosen by the inventor will be read
in the sense the inventor is presumed to have
intended, and in a way that is sympathetic to
accomplishment of the inventor’s purpose expressed
or implicit in the text of the claims. However, if the
inventor has misspoken or otherwise created an
unnecessary or troublesome limitation in the claims,
it is a self-inflicted wound. The public is entitled to
rely on the words used provided the words used are
interpreted fairly and knowledgeably. [Emphasis in
the original.]
[33] Claim construction requires that the disclosure and the claims
be looked at as a whole “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” (Consolboard at p. 520; see also Teva Canada
Ltd. v. Pfizer Canada Inc., 2012 SCC 60, [2012] 3 S.C.R. 625 at
para. 50). Consideration can thus be given to the patent
specifications to understand what was meant by the words in the
claims. One must be wary, however, not to use these so as “to
enlarge or contract the scope of the claim as written and …
understood” (Whirlpool at para. 52; see also Free World Trust at