Federal Court Considers Validity and Infringement of Canadian Patent 2,491,858

On March 6, 2019, the Federal Court (Court) issued a decision in Tensar Technologies Ltd v Enviro-Pro Geosynthetics Ltd, 2019 FC 277, considering the validity and infringement of Canadian Patent 2,491,858 (the ‘858 Patent), owned by Tensar Technologies, Limited (Tensar).  The Court found that the claims at issue were valid, but not infringed by Enviro-Pro Geosynthetics Ltd (Enviro-Pro). 

The ‘858 Patent relates to polymeric geogrids used to reinforce particulate matter.  The geogrids are made by stretching and biaxially orienting a material provided with a hexagonal array of holes, resulting in a triangular geometric structure with continuous molecular orientation in the direction running around the curved regions where the strands meet a junction.

In finding that the claims at issue were valid, and not obvious, the Court applied the “obvious to try” test.  The Court noted that significant effort was required to achieve the invention; routine trials did not suffice.  Up until introduction of the '858 Patent, the geogrid industry focused on making marginal improvements to the existing technology, which suggests that it was not self-evident that the invention ought to work.  Additionally, the prior art repeatedly emphasized the importance of maintaining unoriented junctions, thereby specifically teaching away from the inventive concept of the ‘858 patent. 

In reaching its conclusion that the claims were not infringed by Enviro-Pro, the Court held that Tensar failed to establish infringement on a balance of probabilities.  While the expert reports provided by Tensar showed data which may be used to infer that there is some degree of orientation, there was no evidence to establish the degree or direction of molecular orientation.

Summary By: Vanessa Komarnicki