We recently posted an article reviewing the year past in oil and
gas patent litigation. We analyzed new Federal Court cases
and issued decisions and provided commentary on future
implications. You can read that article here.
This article continues that analysis by looking backwards in
time; specifically to oil and gas patent litigation for the years
2009-2012. What conclusions can be drawn if we look at a
5-year window of time?
The short answer is that 2013 was as busy a year for oil and gas
patent litigation as the previous four years combined.
For the 2009-2012 timeframe there were twelve patent cases filed
in the Federal Court and Federal Court of Appeal relating to oil
and gas patent litigation. Six oil and gas patent infrinement
decisions were rendered by the Federal Court and Federal Court of
Appeal in that same timeframe.
What kinds of cases are being filed? As
was the case in 2013, there was a mix but the largest concentration
(five) dealt generally with downhole tool technology.1
Other cases involved wellbore treatment,2 oil
fracking,5 and pumping.6 Related cases
include mining technology,7 and gas scrubbing from
What cases were decided? In 2009-2012
there were two lines of cases which accounted for all six decisions
rendered by the Federal Courts. They are the
Weatherford line of cases (4 cases, including appellate
decisions) and the Wenzel line of cases (2 cases,
including the appeal). As is typical in most areas of patent
litigation, the percentage of cases that proceed to trial is much
smaller than the percentage of cases that are filed.
The remaining question is whether the sharp rise in oil and gas
patent litigation in 2013 is an aberration or foreshadows an
increase in such cases in the future. There seems to be no
legislative triggering event to account for the rise. This is
unlike the situation in 1993 when legislative changes ushered in a
sharp rise in pharmaceutical patent litigation. In the
absence of such triggering events we cannot speculate on 2014 and
beyond without more data. However, we will be monitoring
these cases in 2014 to identify any trends.
Tim Ellam and Steven Tanner will be presenting on Oil and Gas
Patent Infringement in our Calgary office on Tuesday, April
23rd, 2014. The seminar is titled "Your Patent Has
Been Infringed: Now What?" If you would like to attend
the seminar, please click here to register. For more information on this
particular seminar, please contact Alison Rannelli.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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