ÉQUIPEMENT DHP INC. Appellant v. ATTORNEY GENERAL OF CANADA,, 2019 FCA 175

Date: 20190611 Docket: A-226-18 Citation: 2019 FCA 175 [ENGLISH TRANSLATION] CORAM: GAUTHIER J.A. DE MONTIGNY J.A. RIVOALEN J.A. BETWEEN: ÉQUIPEMENT DHP INC. Appellant and ATTORNEY GENERAL OF CANADA, COMMISSIONER OF PATENTS, 9125-6651 QUÉBEC INC., GUY HAMEL AND ROBERT MITCHELL Respondents Heard at Montréal, Quebec, on June 11, 2019. Judgment delivered from the bench at Montréal, Quebec, on June 11, 2019. REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. Date: 20190611 Docket: A-226-18 Citation: 2019 FCA 175 CORAM: GAUTHIER J.A. DE MONTIGNY J.A. RIVOALEN J.A. BETWEEN: ÉQUIPEMENT DHP INC.

Appellant and ATTORNEY GENERAL OF CANADA, COMMISSIONER OF PATENTS, 9125-6651 QUÉBEC INC., GUY HAMEL AND ROBERT MITCHELL Respondents

REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec, on June 11, 2019.) GAUTHIER J.A. [1] Équipement DHP Inc. (DHP) is appealing the interlocutory order of Justice Lafrenière of the Federal Court dismissing its motion fora stay of re-examination proceedings for Canadian Patent No. 2,723,630 (Patent 630) before the Canadian Intellectual Property Office’sPatent Office. [2] The only relevant action in this case before the Federal Court is the one commenced by DHP to invalidate certain Canadian patents,including Canadian Patent No. 2,712,715 (Patent 715).

In its action, DHP alleges that Guy Hamel misrepresented himself as the soleinventor of the invention described and claimed in Patent 715, contrary to subsection 53(1) of the Patent Act, R.S.C. 1985, c. P-4. DHPfurther alleges that Patent 715 is invalid for lack of novelty (paragraph 28.2(1)(

b) of the Patent Act) and because the subject matter of theclaims was obvious (paragraph 28.3(

b) of the Patent Act). [3] Among other things, DHP submits that the Federal Court erred in stating that, regardless of the Federal Court’s decision in DHP’saction, [translation] "“it will not change the fate of Patent 630 in terms of the subject matter disclosed in the Patent 715 file”". That wasan error of law reviewable on the standard of correctness (Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235). [4] In view of the representations made before us, we do not believe that any declaration of the invalidity of Patent 715 in DHP’s actioncould have any impact on the application of paragraph 28.2(1)(

c) of the Patent Act in respect of Patent 630 and the ongoingre-examination. That paragraph, which deals with disclosure in a patent application filed before the date of the claims of Patent 630,applies whether a patent is issued following this application or not. Lastly, the Court questions whether it has the power to rule on thevalidity of a patent application rather than that of a patent. [5] Under the circumstances, the Federal Court cannot have committed a reviewable error that could justify our intervention.

Therefore,the appeal will be dismissed with costs fixed at $1,500, all-inclusive. “Johanne Gauthier” J.A. Certified true translation Erich Klein FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-226-18 STYLE OF CAUSE: ÉQUIPEMENT DHP INC. v. ATTORNEY GENERAL OFCANADA, COMMISSIONER OF PATENTS, 9125-6651QUÉBEC INC., GUY HAMEL AND ROBERT MITCHELL PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: June 11, 2019

REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. DE MONTIGNY J.A. RIVOALEN J.A. DELIVERED FROM THE BENCH BY: GAUTHIER J.A. APPEARANCES : Bob H. Sotiriadis Catherine Thall Dubé For the Appellant Hilal El Ayoubi For the Respondents 9125-6651 QUÉBEC INC., GUY HAMEL AND ROBERT MITCHELL SOLICITORS OF RECORD : ROBIC, LLP Montréal, Quebec For the Appellant ÉQUIPEMENT DHP INC. Hilal El Ayoubi Montréal, Quebec For the Respondents 9125-6651 QUÉBEC INC., GUY HAMEL AND ROBERT MITCHELL