Federal Court Interprets Patent Act Amendments To Prior User Rights Provisions

The Federal Court has provided the first interpretation of the recently amended Patent Act provisions relating to the prior use defence to claims of patent infringement. In Kobold Corporation v NCS Multistage Inc, the Court interprets section 56 of the Patent Act and provides a procedure for deciding whether the defence will apply. 

In this dispute, the plaintiff Kobold alleged that the defendant NCS's four proprietary fracking tools were infringing its Canadian patent related to equalizing pressure within wellbores. NCS brought a motion for summary judgment asking for the action to be resolved based on the defence of prior use pursuant to section 56 of the Patent Act.  The Court found that the interpretations of subsections 56(1), (6) and (9) are a discrete question of law and therefore suitable for summary judgment.