A 2011 Federal Court of Appeal patent decision which had placed limits on post-grant allegations of invalidity will remain the law of Canada in the wake of the Supreme Court of Canada’s refusal to grant leave to appeal.
At the Federal Court of Appeal (Corlac Inc. et al. v. Weatherford Canada Ltd., Grenke et al., 2011 FCA 228) Justice Layden-Stevenson had held that certain provisions of the Patent Act relating to procedural matters (in s. 73) had effect only during the pendency of the patent application itself and could not be relied upon to invalidate a patent, once granted. Earlier, and somewhat controversial cases in the Federal Court, which had suggested that the "good faith" provisions of s. 73 could be relied upon to attack an issued patent, were expressly not followed by the Federal Court of Appeal.
The decision of the Supreme Court of Canada to deny leave to appeal means that the Federal Court of Appeal interpretation of s. 73 will govern patent litigation in Canada. As a result, arguments of "inequitable conduct" or lack of "good faith" in prosecution of the application will be much more difficult to make in cases relating to an issued patent.
Dimock Stratton represented the successful patentee Edward Grenke and the licensee Grenco Industries Ltd. in the Federal Court, the Federal Court of Appeal, and in responding to the Supreme Court of Canada leave application.