Something 'Not So New' In The World Of Fracking

On April 25, 2019, the Federal Court of Appeal issued its decision in a longstanding patent dispute in the oil patch regarding hydraulic fracturing technology: Packers Plus Energy Services Inc. and Rapid Completions LLC v. Essential Energy Services Ltd. et al, 2019 FCA 96. In support of its patent, Packers had issued a series of infringement suits against several players in the Canadian oil industry, including Baker Hughes Canada and Weatherford.

In a unanimous decision of the three member panel, the Federal Court of Appeal denied the appeal of Packers Plus Energy Services Inc. ("Packers") and Rapid Completions LLC (collectively, the "Appellants") from a trial decision dismissing Packers' claim of infringement and instead invalidating its Canadian Patent No. 2,412,072 (the "Patent") on the basis of anticipation and obviousness (2017 FC 1111). The Appellate Court upheld the Trial Court's finding of invalidity on the basis of obviousness, finding it unnecessary to address the issues of anticipation or infringement which were also found against Packers at trial.

Central to the suit, and appeal, was the claim in Packers' Patent of a method (colloquially referred to as the "ball-drop method") capable of use in a variety of wellbores (particularly in open holes) to see fracking fluids selectively discharged using a series of packers, ports, and sliding sleeves.

After reconfirming and applying the established law regarding obviousness, the Federal Court of Appeal concluded that the Trial Judge had not committed any palpable and overriding error and thus dismissed each of the Appellants' seven arguments as to how the Trial...