Making A Splash: Federal Court Of Appeal Restores Validity Of Water Slide Patent

On March 20, 2026, the Federal Court of Appeal (the FCA) issued its decision in ProSlide Technology Inc. v WhiteWater West Industries, Ltd., 2026 FCA 59, reversing the invalidation of ProSlide Technology Inc.’s (ProSlide) asserted water slide claims (the Claims) for overbreadth. The FCA also upheld the Federal Court’s (the FC) findings that WhiteWater West Industries Ltd. (WhiteWater) did not infringe the Claims, and the Claims were not invalid for lack of utility.

ProSlide argued that the FC erred in finding that claiming more broadly than the invention made is a proper ground of invalidity, and in finding that WhiteWater’s Canadian activities did not amount to making and using the claimed invention. WhiteWater argued that the FC erred in finding that ProSlide adequately disclosed the factual basis for its prediction of utility.

The FCA affirmed that claiming more broadly than the invention made is a distinct, valid ground of invalidity from claiming more broadly than the invention disclosed. However, it held the FC erred in finding that ProSlide’s Claims were invalid for being broader than the invention made. The FC’s findings on the key aspects of the invention were primarily based on inventor and expert testimony. The FCA noted that the patent specification is generally the most reliable indicator of what the inventor contemplated, and key aspects identified by the FC were explicitly indicated as non-essential in the specification. The FC provided no explanation for favouring inventor testimony over the specification, and the FCA accordingly reversed the finding of invalidity.

The FCA upheld the FC’s finding of non-infringement, as WhiteWater’s activities in Canada did not extend to making, assembling, and using the claimed water slide features. The FCA held that merely generating detailed computer-aided designs and mechanical drawings in Canada is not “making” the claimed invention where the invention is a physical object.

Lastly, the FCA upheld the finding that ProSlide met the threshold for a sound prediction of utility. The predicted utility for the Claims was limited to a rider entering, traversing, and exiting the slide features, which ProSlide’s disclosed computer-aided designs demonstrated. There is no requirement for all of ProSlide’s testing to be disclosed where it was not relevant to the use of claimed slide features.

Ultimately, the FCA allowed ProSlide’s appeal in part and dismissed WhiteWater’s cross-appeal.

Summary By: Amy Ariganello