Federal Appeal

Intellectual Property


Validity of patent

Attributes of person skilled in the art determine extent of common general knowledge which is key component in obviousness analysis

Federal Court found that certain claims in owner’s 567 Patent were valid, determined that defendant had infringed some claims, issued injunctive relief, and awarded owner accounting of profits and compensation for use prior to date of issue of 567 Patent. Federal Court clarified accounting method in supplemental judgement, and fixed costs. Defendant appealed. Appeal allowed in part. Federal Court made contradictory and irreconcilable findings concerning attributes of person skilled in art (POSITA). Court held that POSITA would have some experience designing fueling equipment for applications covered by 567 Patent, namely refueling equipment used in fracturing operations at well site, however, this experience was omitted from conclusion on attributes of POSITA and summary of POSITA’s common general knowledge. Contradiction disclosed palpable and overriding error since attributes of POSITA determine extent of common general knowledge which is key component in obviousness analysis. Construction of impugned terms should be re-determined since way POSITA would understand terms could be impacted by knowledge of fuel system design.

AFD Petroleum Ltd. v. Frac Shack Inc. (2018), 2018 CarswellNat 3775, 2018 FCA 140, Wyman W. Webb J.A., Mary J.L. Gleason J.A., and J.B. Laskin J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 183, 2017 FC 104, Michael D. Manson J. (F.C.). (F.C.A.); reversed (2017), 2017 CarswellNat 6573, 2017 CarswellNat 6574, 2017 FC 274, 2017 CF 274, Michael D. Manson J. (F.C.).

Law Times Poll

Ontario Premier Doug Ford has announced that real estate lawyer Doug Downey will be Ontario’s new attorney general. Do you expect Downey to take a substantially different approach to his portfolio than his predecessor in the role?