Decision

Proslide Teachnology Inc. v. Whitewater West Industries Litd., 2026 FCA 109

Justice Locke; Justice Heckman; Justice Roussel - 2026-06-01

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This decision concerns costs in respect of an appeal by ProSlide and cross-appeal by WhiteWater to this Court from a decision of the Federal Court in an action alleging infringement of four of ProSlide’s patents (2024 FC 1439 and 2026 FCA 59) … allowed the appeal in part (restoring the validity of certain claims of three of the four patents in suit but maintaining the findings of non-infringement) and dismissed the cross-appeal. … Regarding Rule 420, I agree with ProSlide that it should not be applied in this case. While it is difficult to measure the value to ProSlide of having recovered the validity of several of its patent claims, including all of the claims of three of the patents in issue, I find it unlikely that it amounts to less than $3,500. … [6] I disagree with ProSlide’s argument that success was divided. It is true that it managed to recover several patent claims and it was successful on the cross-appeal, but WhiteWater had the more important overarching victory of successfully defending itself against allegations of patent infringement. … I would award a lump sum of costs in the amount of $25,000 to be paid by ProSlide to WhiteWater. On costs, the court rejected the argument that success was divided, finding that successfully defending against all infringement allegations represented the more significant outcome. The court declined to apply Rule 420 to double costs, finding the value of restored patent claims likely exceeded the settlement offer of $3,500. Elevated costs were also refused as the appeal did not have a very low chance of success. Recognising the unsuccessful cross-appeal, only a single set of costs was awarded. A lump sum of $25,000 plus post-judgment interest at 2.75% was ordered payable to the successful respondent.

Decision relates to:

 

Canadian Intellectual Property