Steelhead Lng (Aslng) Ltd. v. Arc Resources Ltd., 2024 FCA 67

Justice Heckman; Justice Goyette; Justice de Montigny - 2024-04-11

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This appeal turns on what constitutes “use” of a patented invention for the purposes of proving infringement of a patent under section 42 of the Patent Act. The appellants claim that the respondents “used” their invention and infringed their patent when, in order to enter into commercially valuable transactions, they disclosed to prospective business partners and stakeholders, as a proof of concept, drawings, specifications and cost estimates of a design which, if ever built, would comprise the essential elements of the patent. The novel and expansive reading of “use” proposed by the appellants to support their claim of infringement finds no basis in the language of the Act or the leading precedents that have interpreted it. Its adoption by this Court would undermine the accepted principles underlying Canada’s regime of patent protection, including the patent bargain, and inject uncertainty into a well-settled area of law. For the reasons that follow, I would reject the appellants’ proposed interpretation of section 42 and dismiss the appeal. This is an appeal from ... 2022 FC 998. ... The question is whether a commercial benefit is realized in the context of a defendant’s commercial activities involving the patented object.

Decision relates to:


Canadian Intellectual Property