PATENTS |
Infringement |
Visx, Inc. v. Nidek Co.
A-847-99
2001 FCA 215, Noël J.A.
28/6/01
8 pp.
Appeal, cross-appeal from Trial Division decision ((1999), 181 F.T.R. 22) concluding appellant's claim in 3 patents relating to apparatus for performing ophtalmological surgery valid but not infringed by respondents--Apparatus manufactured by respondent Nidek for performing ophtalmological surgery of cornea at centre of allegation of infringement--Purposive interpretation of claim requiring phrase "anterior surface of the cornea" be read as meaning outer layers of cornea up to portion of stroma, foremost outer layer being epithelium--To construe phrase "anterior surface of the cornea" as limited to epithelium would be inconsistent with wording of claim as whole--Nothing in language of claim suggesting inventor envisaged controlled ablative photodecomposition of cornea would begin anywhere other than at surface of epithelium--Trial Judge did not err in concluding phrase "means for shaping, focusing and directing the beam towards the cornea" should be read as meaning shaping, focusing, directing of entirety of originally rectangular laser beam--Properly concluded myopia, astigmatism patents not infringed by respondents--As to cross-appeal, Trial Judge properly concluded patents in issue valid--Appeal, cross-appeal dismissed.