MediaTube asking Supreme Court to review Bell Fibe case

Six years after first filing suit alleging BCE Inc. infringed on its patent in the making of the telecom’s Fibe TV — and along the way suffering a number of decisions against it — MediaTube Corp. is asking the Supreme Court of Canada to review its case. The Aurora, Ontario-based TV service provider is calling the legal challenge an opportunity for the nation’s highest court to not only assert the language rights of lawyers in court, but also to modernize Canadian patent law and bring it up to international standards. The leave to appeal application, filed last month, hinges on two essential arguments: it alleges the lower courts did not accommodate the language preference of its counsel when she was denied the ability to present her arguments in French, thus causing her to stumble through portions of her hearing; and it claims the sub courts restricted the language of its patent claim so much that it rendered its intellectual property “effectively useless.” Emails and phone calls to MediaTube’s lead lawyer, Paul Lomic, were not returned. Bell representatives also didn't respond to a request for comment. MediaTube claims its patent encompasses a system where different audio and visual services -- through the internet, cable and over-the-air -- can be accessed through a single system via a device, such as a TV. It alleges Bell’s Fibe TV service, which is delivered through the internet protocol, infringes on that patent. MediaTube first brought the action, together with NorthVu Inc., against Bell in 2013. The $350-million lawsuit alleged that its patent allows for TV signals to be more efficiently managed by sending only those signals the user selects -- instead of “all available audio/video content” being sent “simultaneously to all communication interface devices.” The Federal Court tossed the case out in January 2017, but the two filed an appeal — with NorthVu later backing out. Subsequent appeals to the Federal Court of Appeal have since been denied. Patents have two parts, according to the application and patent law: a “disclosure” that describes the “inventive concept” of the patent so that anyone skilled in the craft can create it at the expiry of its monopoly, and the “claims” that set out the boundaries of the patent and the exclusive rights of the patent holder over it. Both parts together are known as the “specification.” The crux of MediaTube’s argument is that, in upholding a lower court’s decision, the Federal Court of Appeal borrowed language from parts of the specification -- which could include drawings and examples -- and, using other terms, constructed its understanding of the claim in a way that effectively narrowed it. It therefore “misapplied” a principle that was used as a basis of the last related Supreme Court of Canada decision nearly 20 years ago, it alleges. In Whirlpool Corp. v. Camco Inc., decided in 2000, the high court said that it’s “perfectly permissible” for judges to “look at the rest of the specification, including the drawing, to understand what was meant by word...in the claims, but not to enlarge or contract the scope of the claim as written and thus understood.” MediaTube said in its application that that SCC approach is still “vague, subjective and results in the risk” of decisions that won’t necessarily follow a line of precedent from previous decisions. In effect, it makes patent cases less predictable. In these kinds of cases, courts survey the evidence with the help of a skilled reader to come to the essential elements of the invention and thus carve out what the ultimate patent claim is, known as “purposive construction.” MediaTube pointed to courts in the United Kingdom and the United States as jurisdictions that have “clear guidance” on this kind of claim construction. For example, the United States’ guidance has it that courts cannot limit the claim portion to examples used in the specification and must apply the “plain ordinary meaning to terms in a claim, to a person of ordinary skill in the art.” In other words, the specification should only be used to support the claim term, not change its scope. If no ordinary meaning to the skilled person is found in the claim or the specification, then the “broadest reasonable interpretation of the term, as best understood” may be used, the application said. The company now asks the court to determine whether such guidelines, as used by other jurisdictions, could assist other courts in figuring out the meaning in patent claims. “The Canadian Supreme Court of Canada should make it clear, as other jurisdictions have, that it is improper either to limit the claim to examples in the specification or to broaden the scope of a claim to include embodiments not covered by the claim language. “This proposed appeal is of national importance as it provides this Honourable Court with the opportunity to provide guidance on if and when it is permissible to import language from the rest of the specification into the claims of a patent,” the company said in the application. “If Canada follows the course charted by the Court of Appeal, we will be at a critical disadvantage internationally,” MediaTube said. “The question for this Honourable Court is simply this: should the Canadian economy suffer because its patent system has not been appropriately updated?" In July, the small Canadian company created a fundraising page on gofundme.com to solicit help in bringing its case to the Supreme Court. The page frames the issue as a David versus Goliath scenario where small-time MediaTube seeks to bring a Fibe TV alternative to the market but is stifled by the deeper pockets of a “behemoth corporation with tentacles entwined into media organizations.” As of Tuesday, it only raised $2,285 out of its $75,000 goal. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

MediaTube asking Supreme Court to review Bell Fibe case

News | October 1, 2019

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MediaTube asking Supreme Court to review Bell Fibe case

News | October 1, 2019

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