In decision released yesterday, the Federal Court of Appeal considered the application of s.73(1)(a) ‘good faith’ under the Patent Act and held that “Its operation is extinguished once the patent issues.” (PDF of decision) Dimock Stratton represented two of the respondents in the case and has a summary available.
The decision is Corlac Inc. et al. v. Weatherford Canada Ltd. et al., 2011 FCA 228. On the issue of invalidity under s.73(1)(a) of the Patent Act, the court stated that:
 To be clear, the concept of abandonment in paragraph 73(1)(a) operates during the prosecution of the application for a patent. Its operation is extinguished once the patent issues. Post-issuance, the provisions of subsection 53(1) must be utilized with respect to allegations of misrepresentation. To conclude otherwise would result in absurdity.
 … To the extent that the Federal Court decisions in G.D. Searle and Lundbeck can be interpreted as standing for the proposition that paragraph 73(1)(a) can be relied upon for the purpose of attacking the validity of a patent, they should not be followed.
The FCA upheld the trial judge’s finding that the patent was valid and infringed although remanded the issue of infringement of a method claim.
The court heard argument from the parties, as well as from IPIC, which had intervened in the proceeding. Bruce Stratton and Vincent Man of Dimock Stratton LLP represented one of the respondents in the case.
The decision is an appeal from Weatherford Canada Ltd. v. Corlac Inc., 2010 FC 667.
Update: The decision is now available from the FCA website: Corlac Inc. et al. v. Weatherford Canada Ltd. et al. 2011 FCA 228.