Liquid Power Specialty Products Inc. v. Baker Hughes Canada Company

Liquid Power Specialty Products Inc. v. Baker Hughes Canada Company

The motion was dismissed because the Rule 220(1)(a) thresholds were not met: there are disputed material facts bearing on incorporation by reference and the effect of the PPH (so the issue is not a pure question of law), and the proposed determination would not be conclusive or likely to materially shorten the upcoming trial. Exercising discretion under the Perera factors, the motion was untimely and prejudicial, could increase time and expense (including likely appeal), and thus should not be allowed.

Citation
2024 FC 1571
Parties
Plaintiff (t 1429 21); Defendant (t 786 21): Liquid Power Specialty Products Inc.; Defendant; Plaintiff by Counterclaim (t 1429 21): Baker Hughes Canada Company; Defendant; Plaintiff by Counterclaim (t 1429 21): Baker Hughes Company; Plaintiff (t 786 21): Flowchem LLC
Court
Federal Court
Jurisdiction
Canada
Judgment Date
7 October 2024
Procedural Posture
Patent Infringement and Invalidity (impeachment) Actions / Pre Trial Motion Under Federal Courts Rules Rule 220(1)(a) Dismissed; Trial Scheduled to Commence November 12, 2024 (12‑day Trial)
Outcome
Motion dismissed.
Legal Topics
Subsection 53(1) of the Patent Act, Incorporation by Reference, Patent Prosecution Highway (pph), Pre‑trial Determination of Question of Law Under Rule 220(1)(a)
Source Language
English
Patent Law Civil Procedure Intellectual Property Subsection 53(1) of the Patent Act Incorporation by Reference Patent Prosecution Highway (pph) Pre‑trial Determination of Question of Law Under Rule 220(1)(a)

Case Brief

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Parties

Liquid Power Specialty Products Inc.

Plaintiff (t 1429 21); Defendant (t 786 21)

Baker Hughes Canada Company

Defendant; Plaintiff by Counterclaim (t 1429 21)

Baker Hughes Company

Defendant; Plaintiff by Counterclaim (t 1429 21)

Flowchem LLC

Plaintiff (t 786 21)

Procedural Posture

Patent Infringement and Invalidity (impeachment) Actions / Pre Trial Motion Under Federal Courts Rules Rule 220(1)(a) Dismissed; Trial Scheduled to Commence November 12, 2024 (12‑day Trial)

Legal Issues

  1. 1 Whether a material allegation in the petition of a US patent application can be incorporated by reference into a Canadian patent application for purposes of subsection 53(1) of the Patent Act
  2. 2 Whether the requirements of Rule 220(1)(a) are met (no dispute as to material facts, pure question of law, determinative of issues)
  3. 3 Whether a pre-trial determination would save time and expense or cause prejudice given the lateness of the motion and factual disputes regarding PPH and examination

Ratio Decidendi

The motion was dismissed because the Rule 220(1)(a) thresholds were not met: there are disputed material facts bearing on incorporation by reference and the effect of the PPH (so the issue is not a pure question of law), and the proposed determination would not be conclusive or likely to materially shorten the upcoming trial. Exercising discretion under the Perera factors, the motion was untimely and prejudicial, could increase time and expense (including likely appeal), and thus should not be allowed.

Court Disposition

Motion dismissed.

Orders

  • The motion is dismissed.
  • Costs of the motion are awarded to Baker Hughes in the amount of $7,500 and to Flowchem in the amount of $2,500, each in any event of the cause.