The Supreme Court of Canada has granted leave to appeal and cross-appeal from the Federal Court of Appeal’s decision in ProSlide Technology Inc. v. WhiteWater West Industries, Ltd., 2026 FCA 59, giving the Supreme Court an opportunity to consider fundamental issues in Canadian patent law related to patent infringement and validity. Notably, this represents another patent-related case for the Supreme Court following its decision in Pharmascience Inc. v. Janssen Inc., 2026 SCC 26, earlier this year.

The issues before the Supreme Court relate to 1) infringement and 2) validity on the grounds of utility and overbreadth.

With respect to infringement, the Court of Appeal upheld the Federal Court’s finding that WhiteWater did not infringe ProSlide’s patents because while WhiteWater performed design and development activities in Canada, none of the products at issue were physically manufactured, assembled or used in Canada. The issue before the Supreme Court will be whether a Canadian patent can be infringed by such design and development activities in Canada when the claimed invention was not manufactured, assembled or used in Canada.

With respect to utility, the Court of Appeal upheld the Federal Court’s finding that the utility of the claimed subject matter of the ProSlide patents at issue was soundly predicted because the patents disclosed a factual basis and a sound line of reasoning. The issue before the Supreme Court will be whether sound prediction has a disclosure requirement (outside the pharmaceutical context) and what that requirement would entail.

With respect to overbreadth, the Court of Appeal reversed the Federal Court’s finding that the claims were overbroad. The issue before the Supreme Court will be whether there are two branches of overbreadth and whether reliance on the patent specification is required for a proper analysis of overbreadth.

Read the Court of Appeal’s decision here. View the Supreme Court case information here.