Ciba Specialty Chemicals Water Treatments Limited’s v. SNF Inc., 2017 FCA 225
Justice Pelletier; Justice Rennie; Justice Woods - 2017-11-17
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This is an appeal from a decision of the Federal Court (2015 FC 997), in which the Court found that Ciba's Canadian Patent CA 2 515 581 was invalid due to obviousness. The action for a declaration of invalidity was brought by SNF, Ciba’s competitor in the industrial chemical business. SNF’s action for a declaration of invalidity of the ‘581 patent was brought on the basis of obviousness, anticipation by prior art and prior use, insufficiency, overbreadth and the presence of false and misleading statements in the application for the patent. The Federal Court found that the allegations of anticipation, insufficiency and overbreadth were not made out. The Court also found that the patent application contained false and misleading statements but because they were not material, the patent was not void pursuant to section 53 of the Patent Act on that account. As a result, the only successful ground of invalidity was obviousness. I believe that the Federal Court erred in its articulation and application of the Windsurfing/Pozzoli framework but it nonetheless came to the right conclusion on the question of obviousness. ... There may be cases in which the inventive concept can be grasped without difficulty but it appears to me that because “inventive concept” remains undefined, the search for it has brought considerable confusion into the law of obviousness. That uncertainty can be reduced by simply avoiding the inventive concept altogether and pursuing the alternate course of construing the claim. Until such time as the Supreme Court is able to develop a workable definition of the inventive concept, that appears to me to be a more useful use of the parties’ and the Federal Court’s time than arguing about a distraction or engaging in an unnecessary satellite debate.
Decision relates to:
- A-479-15 - CIBA SPECIALTY CHEMICALS WATER TREATMENTS LIMITED v. SNF INC. which is an appeal from 2015 FC 997 in T-1749-11