This post provides an update to our earlier post on 12 September 2016 regarding the Federal Court’s decision in Pollard Banknote Limited v. BABN Technologies Corp., 2016 FC 883. In this decision, the Federal Court reluctantly followed the Supreme Court’s ruling that file wrapper estoppel is not admissible in claim construction.
An appeal to this case has been launched on 29 September 2016. In the Notice of Appeal, the Appellants did not specifically argue on the admissibility of file wrapper estoppel or contend that an error was made specifically because the trial judge referred to the file wrapper. However, the Appellants allege at page 7 of the Notice of Appeal that while the trial judge stated in his judgment that file wrapper content did not underpin his conclusions, the trial judge did in fact consider the file history of the patent application in construing the claims at issue. It will be interesting to see if the Federal Court of Appeal will squarely address this issue in considering the appeal.
A copy of the Notice of Appeal that was filed with the Federal Court of Appeal can be found here.