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Patents - Inventive Concept. AGI Suretrack, LLC v. Farmers Edge Inc.
In AGI Suretrack, LLC v. Farmers Edge Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal from a dismissed patent infringement action.
Here the court considers patent 'inventive concepts':[119] I do not see an error in the judge’s characterization of the general inventive concept: it is informed by the disclosure, reflects the claims construction exercise, encompasses the essential elements but is not limited to them, is not wider or narrower than the language of the claims, and can apply throughout the impugned claims (Shire, at paras. 67, 69-70, 74). The court continues on this theme at para 120-125.
. 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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