The Federal Court of Appeal's recent decision in Steelhead LNG (ASLNG) Ltd. V. Arc Resources Ltd., 2024 FCA 67 decides how one infringes through the “use” of a patented invention; or perhaps how one can make use of a patent without infringing.

This tale of competing LNG projects, confidential designs, and commercial intrigue establishes that the concept of "use" – in the patent infringement sense – isn’t as flexible as a yoga instructor. Steelhead LNG, armed with a patent for a floating LNG facility, claimed that ARC Resources and others had infringed even though they hadn’t actually built anything resembling Steelhead's patented facility. Instead, they shared drawings and specifications with potential partners proposing to make a facility allegedly covered by the patent. Is this infringement by "use" of the patented invention? The Court of Appeal says “no” because a physical manifestation of the patented invention is required for infringement.

Perhaps a situation such as this could be better addressed by a claim for something other than patent infringement. For example, if there is a conspiracy to commit patent infringement (a so-called “illegal act”) intentionally presented to interfere with a competitor’s economic relationship that causes harm, one might imagine a tort claim being brought. Such a claim might not be available on the facts of this case, however. Moreover, the Court of Appeal suggested that the appellants may properly seek relief by asserting other intellectual property rights, such as copyright and moral rights.^[1] This case appears to be strictly limited to a claim for patent infringement through the design, development, and marketing to others of an LNG project that included a design for an infringing LNG facility; and on the facts it appears that the contract was awarded to a third party, who proposed to make a different LNG facility.

The Court of Appeal reaffirmed that patent protection does not extend to the benefit or result of the patent, but to the specific means of obtaining it.^[2] Understandably, this decision might leave patent holders feeling like their patents are of less value since their disclosures can be used by competitors with supposed impunity. But, it also underscores the idea that a patent isn't a tool to restrain all competitive business activities.  When it comes to patent infringement, it seems you've got to walk the walk, not just talk the talk. So, the next time you find yourself wondering if you've crossed the line into patent infringement, just remember: if it hasn't been built, it probably isn’t infringing.

Please note that this blog post is for general information and entertainment purposes only. It simplifies complex legal issues and may not reflect all aspects of the case. It's recommended to consult with a qualified patent attorney for specific legal advice or if you're navigating the treacherous waters of patent litigation.

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[1] Steelhead LNG (ASLNG) Ltd. v. Arc Resources Ltd., 2024 FCA 67 at para. 88 [Steelhead].

[2] Steelhead at para. 83.