In a lawsuit launched in December 2011, Bombardier Recreational Products accused its major competitor Arctic Cat of infringing BRP’s patents related to its revolutionary Ski-Doo REV snowmobiles. BRP is a global leader in snowmobiles, power sports vehicles and propulsion systems with over 75 years of experience in the field.
In the late 1990’s, BRP had developed a completely new way of positioning the rider on a snowmobile and a new construction for a snowmobile to accommodate this new rider positioning. BRP’s technology revolutionized the industry and allowed BRP to regain its dominance in the market. BRP alleged that Arctic Cat had copied BRP’s technology, and sued in the Federal Court of Canada in late 2011, in what is known as the “REV” case. In 2013 Arctic Cat retaliated by claiming that BRP had infringed Arctic Cat’s patents in engine control technology; this became known as the “Engine” case. Both cases were heard in 2015-2016 in separate trials.
In a first judgment released in September, 2016 (2016 FC 1047), Judge Roy convincingly dismissed Arctic Cat’s Engine case. He ruled that BRP’s engine control systems did not infringe Arctic Cat’s patent, that the patent was in any event invalid and moreover, that Arctic Cat lacked standing to enforce the patent because BRP had shown that the technology claimed in the patent had actually been developed by a third party, and not by Arctic Cat as the latter had claimed. The judge also praised BRP’s intellectual property due diligence and design-around efforts, providing a road map for how companies operating in Canada can engage in effective freedom-to-operate and design-around strategies.
Arctic Cat appealed. Its appeal was summarily dismissed in brief reasons delivered from the bench in June 2018 (2018 FCA 125).
As for the REV case, after many ups and downs Judge Roy finally found, in a judgment handed down on June 15, 2020, that Arctic Cat had infringed one of BRP’s REV patents, and issued a permanent injunction prohibiting all sales of Arctic Cat adult snowmobiles in Canada until expiry of the patent (2020 FC 691). Arctic Cat was also ordered to pay a royalty of $135 for each infringing snowmobile, for total compensation in the millions.
This ruling was a stunning victory for BRP. BRP’s Senior Vice President, General Counsel & Public Affairs was quoted as saying, “Innovation is part of our DNA and today our ingenuity, which makes our company and products unique, is recognized and protected against intellectual property violation. The REV platform was and is still a game changer in the snowmobiling industry and to have it protected in Canada is an important win”.
Arctic Cat appealed and brought a motion to stay the injunction, which was dismissed (2020 FCA 116). Because Arctic Cat was shut out of the Canadian market by the injunction, it sought an accelerated hearing of its appeal.
On November 2, 2020, on the eve of the appeal hearing, BRP announced that it had reached a global settlement of this litigation and all other ongoing intellectual property disputes with Arctic Cat.
Fasken’s IP litigation team is proud to have been instrumental in achieving this successful result for our client.
The Fasken team was led by Marek Nitoslawski and included David Turgeon, Christian Leblanc, Joanie Lapalme, Michael Shortt, Lynn Chacra and Sybil Elkharrat.
Jurisdiction
- Québec
