Weatherford Canada Ltd. et al. v. Corlac Inc. et al., (2011) 422 N.R. 49 (FCA)

• Judge: Nadon, Evans and Layden-Stevenson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: July 18, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 422 N.R. 49 (FCA);2011 FCA 228

Weatherford Can. Ltd. v. Corlac Inc. (2011), 422 N.R. 49 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. SE.014

Corlac Inc., National-Oilwell Canada Ltd., and National Oilwell Incorporated (appellants) v. Weatherford Canada Ltd., Weatherford Canada Partnership, Darin Grenke, as personal representative of the Estate of Edward Grenke, and GrenCo Industries Ltd. (respondents) and the Intellectual Property Institute of Canada (intervenor)

(A-282-10; 2011 FCA 228)

Indexed As: Weatherford Canada Ltd. et al. v. Corlac Inc. et al.

Federal Court of Appeal

Nadon, Evans and Layden-Stevenson, JJ.A.

July 18, 2011.

Summary:

Canadian patent No. 2,095,937 (the '937 patent) was owned by Grenke and licenced to GrenCo Industries Ltd. which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Ltd. and Weatherford Canada Partnership (collectively, the plaintiffs). The '937 patent claimed a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps that troubled heavy oil producers since the early 1980s. This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps. The defendants, aside from denying the allegations and attacking the patent, also counterclaimed against the plaintiffs, claiming that the defendants were the owners by assignment/licence of the '937 patent and that the plaintiffs had in fact infringed their patent rights.

The Federal Court, in a decision reported at 370 F.T.R. 54, allowed the action and dismissed the counterclaim. The defendants appealed.

The Federal Court of Appeal allowed the appeal regarding the finding of infringement with respect to claim 17 of the '937 patent and remitted that issue to the trial judge. In all other respects, the appeal was dismissed.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See second Patents of Invention - Topic 1589 ].

Patents of Invention - Topic 705

Application for grant - General - Disclosure and examination (incl. duty of candour) - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent - The trial judge allowed the action - The defendants appealed - The defendants' asserted that the plaintiffs were under a statutory obligation (s. 73(1)(a) of the Patents Act) to act in good faith in responding to all requisitions made by the Examiner and the Commissioner of Patents during prosecution of the patent - The failure of an applicant to meet the duty of good faith would result in the deemed abandonment of the patent application unless the defects were rectified within a defined period - According to the defendants, technical non-compliance with the provisions of s. 73 was sufficient for the abandonment of a patent both during prosecution and post-issuance - The Federal Court of Appeal dismissed the appeal - Section 73(1)(a) spoke to good faith in the prosecution of the patent application - The provisions were mutually exclusive - There was no indication that Parliament intended to alter the existing law that established a dichotomy between an application for a patent and a patent - To be clear, the concept of abandonment in s. 73(1)(a) operated during the prosecution of the application for a patent - Its operation was extinguished once the patent issued - Post-issuance, the provisions of s. 53(1) had to be utilized with respect to allegations of misrepresentation - To conclude otherwise would result in absurdity - An issued patent would be subject to retroactive scrutiny by the courts in relation to the submissions made by an applicant to the Patent Office during prosecution (generally many years prior), judged against unknown criteria - It was for the Commissioner to determine whether an applicant's response to a requisition from an Examiner was made in good faith, not for the courts - See paragraphs 130 to 151.

Patents of Invention - Topic 1026

The specification and claims - Construction of a patent - General - The Federal Court of Appeal stated that "claims construction is a question of law: ... However, in construing the claims, the judge will be assisted (but not bound) by evidence from expert witnesses in order to be able to construe the claims in a knowledgeable way: ... The judge's assessment of the expert evidence as well as his factual conclusions as to the state of the art are factual findings that will not be reversed on appeal absent palpable and overriding error ..." - See paragraph 24.

Patents of Invention - Topic 1026

The specification and claims - Construction of a patent - General - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The trial judge allowed the action - The defendants appealed - The defendants' claims construction argument contained three distinct components - The first component was that the judge failed to construe the claims of the '937 patent; the second was that he did not construe the claims correctly; the third was that he did not identify any essential elements - The Federal Court of Appeal rejected the claims construction arguments - The trial judge addressed all claims construction issues raised by the parties - There was no issue regarding the essentiality of claim elements - The defendants had not demonstrated any error of law or principle, or any palpable or overriding error of fact or mixed fact and law on the trial judge's part - The fact that the judge preferred the expert evidence of the plaintiffs' witnesses (Dr. Salant in particular) and adopted their views did not constitute, in and of itself, an error of law - The trial judge examined the evidence (on the contentious words or phrases) of all experts before indicating his preferences - He did not delegate the task of construction to the plaintiffs' experts - See paragraphs 21 to 35.

Patents of Invention - Topic 1507

Grounds of invalidity - General - Untrue material allegations in petition, specification or drawings - Canadian patent No. 2,095,937 (the '937 patent), filed in May 1993 and issued in December 1998, was owned by Grenke and licenced to GrenCo Industries Ltd. which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Ltd. and Weatherford Canada Partnership (collectively, the plaintiffs) - The '937 patent claimed a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps that troubled heavy oil producers since the early 1980s - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The defendants asserted that the '937 patent was invalid because Grenke made material misrepresentations or material willful misstatements in the patent petition by claiming that he was the inventor of the '937 patent - In Grenke's initial petition, the inventors named were Grenke and Torfs - A later amendment removed Torfs as co-inventor - The defendants relied on s. 53(1) of the Patent Act to assert that a patent grounded on a material untruth in the petition was void - The trial judge rejected the assertion - The Federal Court of Appeal affirmed the decision - The trial judge's conclusion that Grenke's misstatement concerning Torfs was immaterial was grounded in the circumstances - His fact-specific analysis accorded with the jurisprudence concerning the materiality of inventorship - The defendants had not demonstrated, as a matter of law, that inventorship was material in all circumstances - Nor had they established that any particular combination of facts would necessarily render the identity of an inventor material for the purpose of s. 53(1) - Regarding the judge's appreciation of the evidence, the court was not persuaded that the defendants had shown palpable and overriding error in relation to the judge's findings concerning the ownership of the invention at the relevant time - Finally, the defendants had not demonstrated that inventorship was somehow relevant to the public's use of the invention - There was no basis upon which the court should interfere with the judge's conclusions - See paragraphs 111 to 129.

Patents of Invention - Topic 1582

Grounds of invalidity - Lack of "inventive ingenuity" (obviousness) - Test for obviousness - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The defendants asserted that the '937 patent was invalid on the grounds of obviousness - The trial judge disagreed - The defendants appealed, asserting that the trial judge did not conduct an obviousness analysis, i.e., the Pozzoli analysis - The Federal Court of Appeal dismissed the appeal - Even though the Supreme Court of Canada, in Apotex Inc. v. Sanofi-Synthelabo Canada Inc. (2008) identified and recommended the Pozzoli framework as a helpful tool, failure to explicitly follow the structure did not, in and of itself, constitute an error of law - On the whole, the trial judge's analysis demonstrated that he implicitly considered the substance of the first two Pozzoli steps, i.e., the identification of the notional person skilled in the art and the inventive concept of the patent - The third Pozzoli step focused on an identification of the differences between the prior art and the inventive concepts of the claim, or the claim as construed - Finally, the Pozzoli framework then asked whether the differences identified at step three constituted steps that would have been obvious to the person skilled in the art, without knowledge of the invention as claimed - If the differences required some degree of inventiveness, the prior art in question did not render the invention obvious - The plaintiffs' experts examined the prior art and concluded that combining the previously known elements of the invention into the combination claimed in the '937 Patent would not have been readily apparent to the notional person skilled in the art - The brevity of the trial judge's comments suggested that he considered the defendants' submissions regarding obviousness to have very little merit - Considering the evidence in totality and the trial judge's assessment of the witnesses, the court was unable to conclude that he erred in a manner that warranted the court's intervention - See paragraphs 66 to 86.

Patents of Invention - Topic 1589

Grounds of invalidity - Lack of "inventive ingenuity" (obviousness) - Particular patents - [See Patents of Invention - Topic 1582 ].

Patents of Invention - Topic 1589

Grounds of invalidity - Lack of "inventive ingenuity" (obviousness) - Particular patents - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The defendants asserted that the '937 patent was invalid on the grounds of obviousness - The trial judge disagreed - The defendants appealed, asserting that the trial judge provided insufficient reasons for his conclusion on obviousness - The Federal Court of Appeal dismissed the appeal, stating that "The judge's reasons regarding the issue of obviousness are terse. The Supreme Court has instructed that 'courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered': .... Read in the context of the record and the submissions on the live issues in the case, the reasons must show that the judge has seized the substance of the matter: ... An appellate court should adopt a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law: ... The critical question is whether the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review: ... For the reasons provided in relation to the issue of obviousness, it is readily apparent that, in this case, the answer to the critical question is no." - See paragraph 87.

Patents of Invention - Topic 1605

Grounds of invalidity - Anticipation - Particular patents - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The defendants asserted that the '937 patent was invalid on the grounds of anticipation - The defendants claimed that the '937 patent was anticipated because its subject matter was disclosed to the public contrary to s. 28.2(1)(a) of the Patent Act as early as 1991 to prospective clients - The trial judge rejected the assertion - The communications between the plaintiffs and the customers took place with an expectation of confidence - Industry evidence confirmed that parties acting in a common cause and those using prototypes or proposing tentative solutions expected and received confidential treatment - The evidence was not sufficiently precise and persuasive that what was disclosed was the essence of the invention - The fact that the units were being tested by some customers was well-known in the area; a testament to the close relationship between the plaintiffs and the customers but that knowledge was not disclosure of the invention itself - Grenke did not disclose the information to either customer with a view that it was a public disclosure nor was he reckless in the matter of disclosure - The Federal Court of Appeal dismissed the defendants' appeal - Given the trial judge's extensive exposure to the evidence and the fact that he had the benefit of seeing and hearing the witnesses, it was open to him to conclude that the prototypes sold to or discussed with the customers were test units and that there was a general industry practice that such units were considered confidential - There was evidence in the record to support the determinations he made - See paragraphs 36 to 65.

Patents of Invention - Topic 1621

Grounds of invalidity - Not true or first inventor - General - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent - The defendants asserted that the trial judge incorrectly required a demonstration of utility for purposes of inventorship - The Federal Court of Appeal dismissed the appeal - The judge did not misapprehend the law regarding inventorship - Although he misspoke with respect to utility, the misstep did not factor into his analysis - The judge in all other respects correctly cited the law regarding inventorship - Briefly, the ultimate question, who was responsible for the inventive concept, was specifically identified - The trial judge recognized that a person "who contributes to the inventive concept may be a co-inventor while those who help the invention to completion, but whose ingenuity is directed to verification rather than original inventive concept, are not co-inventors" - He noted "the necessity of reducing the idea to a definite and practical shape and considered it inappropriate to break the combination into its various elements (and attribute contribution by various persons to each of those elements) in resolving the issue of inventorship" - The defendant had not persuaded the court that the trial judge failed to appreciate and apply the proper law with respect to inventorship - See paragraphs 96 to 99.

Patents of Invention - Topic 1625

Grounds of invalidity - Not true or first inventor - Failure to name all inventors - Canadian patent No. 2,095,937 (the '937 patent) was owned by Grenke and licenced to GrenCo Industries Ltd. which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Ltd. and Weatherford Canada Partnership (collectively, the plaintiffs) - The '937 patent claimed a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps that troubled heavy oil producers since the early 1980s - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The defendants asserted that Grenke was not the true inventor/owner of the claims in '937 patent and the '937 patent failed to mention all inventors - The trial judge rejected the assertion - The court noted that "a person who contributes to the inventive concept may be a co-inventor while those who help the invention to completion, but whose ingenuity is directed to verification rather than original inventive concept, are not co-inventors. [...] the 'inventor' is not just a person who comes up with a general idea or thesis. The inventor must have reduced the idea or thesis to a definite and practical shape by building it as described or by fully describing how it will be practised - showing that there is utility in the claimed invention. [...] even where certain elements have been contributed by persons other than the inventor named, this would not make them joint inventors of the combination." - Grenke was an inventor of the '937 patent - The other persons identified by the defendants (except with the special case of Torfs) were not - The evidence was that Grenke came up with the key concepts of the invention - He acknowledged that others made suggestions, but it was he who made the choices of options, determined how the invention should function and made it function - The Federal Court of Appeal affirmed the decision - The trial judge's finding were open to him on the evidence - The plaintiffs had not demonstrated any error that warranted intervention - See paragraphs 100 to 110.

Patents of Invention - Topic 2890

Infringement of patent - Acts constituting an infringement - Inducing infringement - Canadian patent No. 2,095,937 (the '937 patent) was owned by Grenke and licenced to GrenCo Industries Ltd. which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Ltd. and Weatherford Canada Partnership (collectively, the plaintiffs) - The '937 patent claimed a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps that troubled heavy oil producers since the early 1980s - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The trial judge allowed the action - The defendants appealed, disputing the trial judge's finding of infringement of claim 17 and contended that the trial judge, by employing an adverse inference, effectively relieved the plaintiffs of their burden to establish inducement - The Federal Court of Appeal allowed the appeal on this issue - "[O]ne who induces or procures another to infringe a patent is guilty of infringement of the patent. A determination of inducement requires the application of a three-prong test. First, the act of infringement must have been completed by the direct infringer. Second, the completion of the acts of infringement must be influenced by the acts of the alleged inducer to the point that, without the influence, direct infringement would not take place. Third, the influence must knowingly be exercised by the inducer, that is, the inducer knows that this influence will result in the completion of the act of infringement." - In view of the stringent test for inducement, the court could not determine whether the judge, had he explicitly applied the test, would have arrived at a conclusion that the defendants indirectly infringed claim 17 of the '937 patent - It was clear that the judge erred in finding infringement of claim 17 of the '937 patent before considering the issue of inducement - The finding of direct infringement could not stand - Further, although the judge was presumed to know the law, the inducement test was a strict one and it was not clear that he appreciated its nature - See paragraphs 155 to 171.

Patents of Invention - Topic 3103

Infringement of patent - Remedies - Injunctive relief - Canadian patent No. 2,095,937 (the '937 patent) was owned by Grenke and licenced to GrenCo Industries Ltd. which sublicensed the patent rights to Weatherford PC Pump Ltd. and subsequently Weatherford Canada Ltd. and Weatherford Canada Partnership (collectively, the plaintiffs) - The '937 patent claimed a seal assembly combination designed to fix a problem of leaking stuffing boxes on rotary progressive cavity pumps that troubled heavy oil producers since the early 1980s - This litigation centered on the claim that the defendants had been infringing, since at least 1999, the '937 patent in the manufacture and sale of their drive systems for rotary oil well pumps - The trial judge allowed the action - The defendants appealed, asserting that the trial judge erred by granting injunctive relief - The defendants asserted that Grenke lacked "clean hands" in his dealings with the Patent Office - The Federal Court of Appeal dismissed the appeal - While acknowledging that Grenke's actions were not beyond reproach, the trial judge was of the view that the defendants had infringed and would continue to infringe the patent, absent his intervention - Contrary to the defendants' assertion, the trial judge did not suggest that an injunction was either necessary or appropriate in every instance of patent infringement - His discretionary grant of injunctive relief was based on the circumstances of this case - Discretionary orders attracted significant deference - The defendants had not satisfied the threshold required for the court's intervention - See paragraphs 152 to 154.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

Whirlpool Corp. et al. v. Camco Inc. et al., [2000] 2 S.C.R. 1067; 263 N.R. 88; 2000 SCC 67, refd to. [para. 24].

Halford et al. v. Seed Hawk Inc. et al. (2006), 353 N.R. 60; 2006 FCA 275, refd to. [para. 24].

Free World Trust v. Electro Santé Inc. et al., [2000] 2 S.C.R. 1024; 263 N.R. 150; 2000 SCC 66, refd to. [para. 26].

Catnic Components Ltd. v. Hill & Smith Ltd., [1982] R.P.C. 183 (H.L.),  refd to. [para. 27].

Eli Lilly & Co. and Thomas Engineering Ltd. v. Novopharm Ltd. (1989), 99 N.R. 60; 26 C.P.R.(3d) 1 (F.C.A.), refd to. [para. 27].

Eli Lilly & Co. v. O'Hara Manufacturing Ltd. - see Eli Lilly & Co. and Thomas Engineering Ltd. v. Novopharm Ltd.

McKay v. Weatherford Canada Ltd. (2008), 383 N.R. 371; 74 C.P.R.(4th) 1; 2008 FCA 369, refd to. [para. 27].

Consolboard Inc. v. MacMillan Bloedel (Sask.) Ltd., [1981] 1 S.C.R. 504; 35 N.R. 390, refd to. [para. 36].

Baker Petrolite Corp. et al. v. Canwell Enviro-Industries Ltd. et al., [2003] 1 F.C. 49; 288 N.R. 201; 2002 FCA 158, refd to. [para. 36].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 37].

Sanofi-Synthelabo Canada Inc. et al. v. Apotex Inc. et al., [2008] 3 S.C.R. 265; 381 N.R. 125; 2008 SCC 61, refd to. [para. 42].

Coco v. Clark (A.N.) (Engineers) Ltd., [1969] R.P.C. 41 (Ch.), refd to. [para. 48].

Beloit Canada Ltd. v. Valmet Oy (1986), 64 N.R. 287; 8 C.P.R.(3d) 289 (F.C.A.), refd to. [para. 68].

Bridgeview Manufacturing Inc. et al. v. 931409 Alberta Ltd. et al. (2010), 405 N.R. 32; 87 C.P.R.(4th) 195; 2010 FCA 188, leave to appeal dismissed (2011), 423 N.R. 393 (S.C.C.), refd to. [para. 69].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 87].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 88].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 88].

Apotex Inc. and Novopharm Ltd. v. Wellcome Foundation Ltd., [2002] 4 S.C.R. 153; 296 N.R. 130; 2002 SCC 77, refd to. [para. 99].

671905 Alberta Inc. et al. v. Q'Max Solutions Inc., [2003] 4 F.C. 713; 305 N.R. 137; 2003 FCA 241, refd to. [para. 116].

Gilbert (Jules R.) Ltd. v. Sandoz Patents Ltd. (1970), 64 C.P.R. 14 (Ex. Ct.), revd. [1974] S.C.R. 1336, refd to. [para. 119].

Sandoz Patents Ltd. v. Gilcross Ltd. et al. - see Gilbert (Jules R.) Ltd. v. Sandoz Patents Ltd.

Teledyne Industries Inc. and Teledyne Water Pik Ltd. v. Lido Industrial Products Ltd., [1979] 1 F.C. 310; 23 N.R. 100 (F.C.A.), refd to. [para. 125].

Comstock Canada v. Electec Ltd. and Hyde (1991), 45 F.T.R. 241; 38 C.P.R.(3d) 29 (T.D.), refd to. [para. 126].

Merck & Co. et al. v. Canada (Minister of Health) et al. (2010), 375 F.T.R. 121; 88 C.P.R.(4th) 98; 2010 FC 1042, refd to. [para. 126].

Procter & Gamble Co. v. Bristol-Myers Canada Ltd. (1978), 39 C.P.R.(2d) 145 (F.C.T.D.), affd. (1979), 28 N.R. 273; 42 C.P.R.(2d) 33 (F.C.A.), refd to. [para. 127].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 135].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 135].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 135].

Lovell Manufacturing Co. and Maxwell Ltd. v. Beatty Brothers Ltd. (1962), 41 C.P.R. 18 (Ex. Ct.), refd to. [para. 138].

Bourgault Industries Ltd. v. Flexi-Coil Ltd. (1999), 237 N.R. 74; 86 C.P.R.(3d) 221 (F.C.A.), leave to appeal refused (2000), 253 N.R. 400 (S.C.C.), refd to. [para. 138].

Eli Lilly Canada Inc. v. Apotex Inc. et al., [2008] 2 F.C.R. 636; 311 F.T.R. 21; 2007 FC 455, affd. [2008] 2 F.C.R. 636; 375 N.R. 381; 68 C.P.R.(4th) 167; 2008 FCA 44, refd to. [para. 138].

Commissioner of Patents v. Farbwerke Hoechst Aktiengesellschaft Vormals Meister Lucius & Bruning, [1964] S.C.R. 49, refd to. [para. 141].

DBC Marine Safety Systems Ltd. v. Commissioner of Patents et al., [2008] 2 F.C.R. 563; (2007), 319 F.T.R. 170; 2007 FC 1142, affd. (2008), 382 N.R. 100; 69 C.P.R.(4th) 189; 2008 FCA 256, folld. [para. 141].

Procter & Gamble Co. v. Beecham Canada Ltd. and Calgon Interamerican Corp. (1982), 40 N.R. 313; 61 C.P.R.(2d) 1 (F.C.A.), leave to appeal refused (1982), 43 N.R. 263 (S.C.C.), refd to. [para. 145].

Beecham Canada Ltd. et al. v. Procter & Gamble Co. - see Procter & Gamble Co. v. Beecham Canada Ltd. and Calgon Interamerican Corp.

Merck & Co. et al. v. Apotex Inc., [2007] 3 F.C.R. 588; 354 N.R. 51; 55 C.P.R.(4th) 1; 2006 FCA 323, leave to appeal refused (2007), 370 N.R. 400 (S.C.C.), refd to. [para. 145].

Therasense Inc. v. Becton, Dickinson and Co., 2011 U.S. App. LEXIS 0590; 2011 WL 2028255 (Fed. Cir.), refd to. [para. 150].

Dutch Industries Ltd. v. Commissioner of Patents et al., [2003] 4 F.C. 67; 301 N.R. 152; 2003 FCA 121, leave to appeal refused (2003), 327 N.R. 392 (S.C.C.), refd to. [para. 151].

Johnson & Johnson Inc. et al. v. Boston Scientific Ltd., [2007] 1 F.C.R. 465; 351 N.R. 87; 2006 FCA 195, leave to appeal refused (2006), 363 N.R. 399 (S.C.C.), refd to. [para. 151].

Johnson & Johnson Inc. et al. v. Arterial Vascular Engineering Canada Inc. et al. - see Johnson & Johnson Inc. et al. v. Boston Scientific Ltd.

Lundbeck Canada Inc. et al. v. ratiopharm Inc. et al. (2009), 357 F.T.R. 75; 79 C.P.R.(4th) 243; 2009 FC 1102, dist. [para. 151].

Searle (G.D.) & Co. et al. v. Novopharm Ltd. et al., [2008] 1 F.C.R. 477; 296 F.T.R. 254; 2007 FC 81, revd. [2008] 1 F.C.R. 529; 361 N.R. 290; 2007 FCA 173, leave to appeal refused (2007), 381 N.R. 398 (S.C.C.), dist. [para. 151].

Apotex Inc. v. Governor-in-Council et al. (2007), 370 N.R. 336; 63 C.P.R.(4th) 151; 2007 FCA 374, refd to. [para. 154].

Elders Grain Co. et al. v. Ship M/V Ralph Misener et al., [2005] 3 F.C.R. 367; 334 N.R. 1; 2005 FCA 139, refd to. [para. 154].

Monsanto Canada Inc. et al. v. Schmeiser et al., [2004] 1 S.C.R. 902; 320 N.R. 201; 2004 SCC 34, refd to. [para. 156].

Dableh v. Ontario Hydro, [1996] 3 F.C. 751; 199 N.R. 57 (F.C.A.), leave to appeal refused (1996), 209 N.R. 396 (S.C.C.), refd to. [para. 162].

AB Hassle et al. v. Canada (Minister of National Health and Welfare) et al. (2002), 298 N.R. 323; 22 C.P.R.(4th) 1; 2002 FCA 421, leave to appeal refused (2002), 313 N.R. 199 (S.C.C.), refd to. [para. 162].

MacLennan et al. v. Gilbert Tech Inc. (2008), 389 N.R. 165; 67 C.P.R.(4th) 161; 2008 FCA 35, refd to. [para. 162].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 166].

Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39; 144 L.T. 194 (H.L.), refd to. [para. 169].

Statutes Noticed:

Patent Act, R.S.C. 1985, c. P-4, sect. 53(1) [Appendix]; sect. 73(1)(a) [para. 136, Appendix].

Authors and Works Noticed:

Fox, Harold George, The Canadian Law and Practice Relating to Letters Patent for Inventors (4th Ed. 1969), p. 381 [para. 156].

Halsbury's Laws of England (4th Ed.), vol. 12, para. 445 [para. 50].

Hebert, Monique, Bill S-17: The Intellectual Property Law Improvement Act (January 19, 1993), p. 2 [para. 147].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1979), vol. 2, para. 290 [para. 166].

Counsel:

Christopher J. Kvas and William D. Regan, for the appellants;

Robert H.C. MacFarlane and Adam Bobker, for the respondent, Weatherford;

Bruce W. Stratton and Vincent Man, for the respondent, Darin Grenke, GrenCo Industries Ltd.;

Steven B. Garland and Colin B. Ingram, for the intervenor, The Intellectual Property Institute of Canada.

Solicitors of Record:

Piasetzki Nenniger Kvas LLP, Toronto, Ontario, for the appellants;

Bereskin & Parr LLP, Toronto, Ontario, for the respondent, Weatherford;

Dimock Stratton LLP, Toronto, Ontario, for the respondent, Darin Grenke, GrenCo Industries Ltd.;

Smart & Biggar, Ottawa, Ontario, for the intervenor, The Intellectual Property Institute of Canada.

This appeal was heard on June 13-15, 2011, at Toronto, Ontario, by Nadon, Evans and Layden-Stevenson, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Layden-Stevenson, J.A., at Ottawa, Ontario, on July 18, 2011.