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Patents - Invention. Canadian Energy Services L.P. v. Secure Energy (Drilling Services) Inc.
In Canadian Energy Services L.P. v. Secure Energy (Drilling Services) Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a patent appeal, here from "a judgment of the Federal Court ... declaring inventorship and ownership of a patent for a polymeric drilling fluid used in drilling for oil".
Here the court considers the essence of patent 'inventorship':B. Did the Federal Court err in its determination of inventorship?
[75] CES alleges several errors in the Federal Court’s determination of inventorship of the 834 Patent. Inventorship is a question of mixed fact and law: Mud Engineering Inc. v. Secure Energy Services Inc., 2024 FCA 131 at para. 15. To determine the question of inventorship, a judge must ask "“who is responsible for the inventive concept?”": Apotex Inc. v. Wellcome Foundation Ltd., 2002 SCC 77 at para. 96. To successfully invent a patentable art or process, an inventor must take steps to reduce that idea to a" “definite and practical shape”": Apotex at para. 97., quoting Christiani v. Rice, 1930 CanLII 81 (SCC), [1930] S.C.R. 443 at 454.
[76] When the inventive concept of a patent is not readily apparent from a claim, determining it may require a judge to look to the patent as a whole. This raises a question of law: Apotex Inc. v. Allergan Inc., 2012 FCA 308 at para. 50. However, to the extent a judge relies on expert evidence and disclosure in the construction of a patent, the judge’s assessment of the expert evidence entails factual findings that will not be reversed on appeal absent palpable and overriding error: Corlac Inc. v. Weatherford Canada Inc., 2011 FCA 228 at para. 24, leave to appeal refused, 2012 CanLII 16427.
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