The Federal Court of Appeal (“FCA”) recently considered the issue of what constitutes “use” of a patented invention for the purposes of proving infringement of a patent under section 42 of the Patent Act (the “Act”).

Steelhead LNG (Aslng) LTD. (“Steelhead”), appealed a summary trial judgment of the Federal Court wherein the Federal Court dismissed Steelhead’s patent infringement action against Arc Resources (“Arc”).

At the summary trial, Steelhead argued that Arc used Steelhead’s invention and infringed Steelhead’s patent by disclosing to prospective business partners and stakeholders, as a proof of concept, drawings, specifications and cost estimates of a design which, if ever built, would allegedly infringe the patent. Notably, such design was never built. The motion judge reviewed the relevant case law and concluded that the case law indicates that infringement under section 42 of the Act requires physical use of the invention. Consequently, the motion judge dismissed Steelhead’s claims.

At the appeal, Steelhead advanced the argument that the meaning of “use” under section 42 of the Act grants a patentee the exclusive right, privilege and liberty of using the goal, purpose or advantage of an invention for commercial benefit. However, the FCA was not persuaded by Steelhead’s argument. The appeal was dismissed accordingly.

A copy of the full decision is available here.