An application for leave to appeal the decision in Steelhead LNG (ASLNG) Ltd.. v. ARC Resources Ltd. (2024 FCA 67) was recently filed by Steelhead LNG (ASLNG) Ltd. (“Steelhead”) in the Supreme Court of Canada (SCC).

In the Federal Court of Appeal (FCA) decision, the FCA upheld the Federal Court’s finding that section 42 of the Patent Act requires physical use of the invention and that “using the goal, purpose or advantage of an invention for commercial benefit” is insufficient to constitute “use” in the context of infringement. Accordingly, the FCA held that Arc’s alleged act of “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”, did not constitute use of the invention in the context of infringement.

If leave to appeal is granted by the SCC, the SCC would have an opportunity to consider and clarify the meaning of “use” in the patent infringement context.

Read the FCA’s decision here. View the Supreme Court of Canada case information for this leave to appeal application here.