Law360 Canada (September 26, 2022, 9:31 AM EDT) -- Appeal by the defendant from summary judgment dismissing the statement of defence and counterclaim in an action to determine ownership of a patent. In the statement of defence, the appellant claimed to be the rightful owner of Patent 834 and counterclaimed for a declaration that it was the owner of Patent 834, a declaration of patent infringement, plus damages and/or disgorgement of profits. The chambers judge was satisfied that the provincial Limitations Act applied because the appellant was not merely seeking a declaration of ownership, but to avail itself of the rights accruing to the owner of a patent, including the right to sue for infringement. The judge determined the appellant’s claim for breach of confidence was filed out of time and that the counterclaim was outside the two-year and 10-year limitation periods. The chambers judge was also satisfied that the appellant’s claim for breach of confidence was barred by a release. The appellant argued that the chambers judge failed to consider issues that went to the merits of its claims for ownership of the 834 patent. It argued the chambers judge erred by failing to categorize the threshold question as a requirement to first determine inventorship and thus ownership of the 834 patent and in dismissing the appellant’s defence to the respondent’s allegation of patent infringement without having determined ownership. The appellant argued the chambers judge mischaracterized the threshold question as being whether the appellant’s allegations of misappropriation of confidential information was statute-barred by the Limitations Act or, alternatively, doomed to fail by virtue of a mutual release. The appellant argued the threshold question should properly have been what was the inventive concept, who conceived the inventive concept, when and where and that this question must first be decided in Federal Court pursuant to s. 52 of the Patent Act....