Docket:
T-194-13
Citation: 2014 FC 287
Ottawa, Ontario, March 24, 2014
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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NEWCO TANK CORP.
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal, pursuant to section 48.5 of
the Patent Act, RSC 1985, c P-4 [the Patent Act], of the decision of a
Re-examination Board on October 29, 2012, cancelling claims 12, 13, and 14 [the
Claims] of Canadian patent no. 2,421,384. The appellant seeks an order
cancelling the Certificate dated October 29, 2012, and confirming the
patentability of the Claims, or in the alternative an order returning the
patent to the Board for a new decision made while applying the correct principles
to determine obviousness.
BACKGROUND:
[2]
The applicant Newco Tank Corp. owns Canadian
patent no. 2,421,384, filed on March 7, 2003 and issued December 15, 2009 after
several rounds of discussion with the examiner. It is a patent for a Method and
Apparatus for Heating a Liquid Storage Tank which contains 14 claims. The
abstract describes it as:
A method and
apparatus for heating a liquid storage tank includes a liquid storage tank
having an interior and a peripheral sidewall. An engine compartment is
appended to the peripheral sidewall in front of the heat tube. An engine is
disposed in the engine compartment. Heat given off from the engine during
operation heats the engine compartment and such heat is transferred through
peripheral sidewall to the interior of the liquid storage tank. An exhaust
conduit extends into the interior of the liquid storage tank. Heat from hot
exhaust gases passing through the exhaust conduit heats the interior of the
liquid storage tank.
[3]
The patent describes the prior art method as
being the use of a propane burner to heat the production tanks. It is noted
that most oil wells in Alberta are set up similarly, with a production flow
line running some distance from the well head to a liquid storage tank. An
engine in a wooden shack beside the well head powers the drive head. Propane
tanks sit beside the liquid storage tank and provide fuel for both the drive
head engine and a propane burner which shoots flame into a fire tube in the
liquid storage tank, warming up the contents and keeping them ‘flowable’ in
winter.
[4]
The invention provides a more efficient method
of warming the storage tank contents by repositioning the drive head engine
into a compartment beside the tank and sending the waste heat which it already
produces through tubing in the tank, thus eliminating one fuel source. There is
a secondary benefit of noise reduction from the engine. The patentee notes that
marine engines are a good choice for this system as they generate more waste
heat.
[5]
The record includes a company presentation
declaring that the patented tank design reduced greenhouse gas emissions by up
to 60%, reduced noise pollution by 60-70%, reduced operating costs by up to
50%, and provided built-in engine containment and security. Tests with a prototype
over the winter of 2008-2009 during outside temperatures in the minus twenties
and thirties (Celsius) were apparently very successful.
[6]
Claim 1 of the patent is for an apparatus for
heating an oil well production storage tank by insetting a portion of a drive
head engine compartment into the tank compartment and transferring heat from
the engine through the sidewall into the tank. The dependent claims 2-7 are for
transferring heat via exhaust and engine coolant conduits extending into the
tank and via hydraulic lines along the production flow line between the well
head and the tank. Claim 8 is for an apparatus insetting the engine compartment
and also for selecting the engine based on the amount of heat it gives off,
with the dependent Claim 9 being for an exhaust conduit with interior baffles. Claim
10 is for a method of insetting the engine compartment and the dependent Claim
11 is for a method of passing hot engine fluids through the tank in a conduit.
[7]
Claims 12-14 are, after amendment during the examination
process:
12. An apparatus for
heating a liquid storage tank, comprising:
an oil well
production storage tank having a peripheral sidewall that defines an interior;
an engine used to operate a drive head on a well head of an oil well; and at
least one conduit extending from the engine, into the interior of the tank and
back to the engine to circulate hot fluid from the engine through the conduit
to thereby heat the interior of the tank.
13. The apparatus of
claim 12, wherein the hot fluid comprises at least one of engine coolant and
hydraulic oil.
14. The apparatus of
claim 13, comprising more than one conduit extending from the engine to
circulate more than one hot fluid.
[8]
On October 4, 2011, the Commissioner of Patents’
office wrote to the patentee to inform it that a re-examination of the patent
had been requested in August 2011. The requester brought to the Board’s
attention eleven U.S. patents (termed D1- D11 by the Board) and asked that
Claims 12-14 of Newco’s patent be disallowed. The prior art was said to
demonstrate that waste heat from an engine had long been recognized as a
heating source during oil production and that substituting engine coolant for
exhaust gases as the hot fluid was not an invention. The requester submitted
that Newco had stated that the prior art did not teach an inset compartment for
the engine but that the use of the same power source to perform two functions
(drive head engine and tank heater) was already well-known.
[9]
On December 6, 2011, the Board found that Claims
12-14 were novel pursuant to section 28.2(1)(b) of the Patent Act,
but rejected them as being obvious in view of six of the U.S. patents (D1, D2,
D4, D5, D10, and D11) and thus not compliant with section 28.3 of the Patent
Act. It described the prior art references briefly:
D1 (Finley): teaches
the use of engine exhaust waste heat to separate petroleum wellstream fluids in
an oil vessel in oil field operations. Exhaust is introduced into the heater
tube.
D2 (Albert):
discloses the use of engine exhaust waste heat to heat pumped oil in a heat
exchanger core. The heated oil recirculates back in the borehole to dissolve
casing scale.
D3 (Kofahl) teaches
the use of a combustion engine in a well to power a pump. Exhaust waste heat
is directed to a heat exchanger tube in the well to heat the oil.
D4 (Gayaut et al.)
teaches the use of engine waste heat from exhaust gases, cooling fluid and
transmission fluid to heat a fluid via a heat exchanger to treat well casings.
D5 (Crawford et al.)
discloses the use of engine waste heat from exhaust gases, cooling fluid and
transmission fluid to heat a treating compound for well tubing.
D6 (Yewell) teaches
use of the waste heat from engine cooling water for heating a well head
assembly to prevent freeze ups.
D7 (Dyer et al.)
teaches an engine used to power a pump section to move oil in a pipeline. Part
of the pipeline oil is converted to fuel to power the engine. Waste engine
exhaust heat is used to heat the oil in the pipeline via a bypass loop to
obtain a usable fuel fraction.
D8 (Williams) teaches
use of waste heat from a well head engine to heat up oil in the internal tank
of a gas generator to cause separation of the gas and obtain fuel for the
engine.
D9 (Wells) discloses
the use of waste heat from engine exhaust to heat oil from a well for
separation of water-paraffin emulsions.
D10 (Immler et al.)
teaches the use of waste heat from an engine powering a generator, via the
engine’s exhaust and cooling systems, to heat up water in a storage tank.
D11 (King) teaches
the use of waste heat from an engine cooling system to heat up water in a tank
of a portable washing station.
[10]
The December 6, 2011 decision found that the
alleged inventive concept of Claim 12 was heating the storage tank oil via a
conduit through which passed at least one hot fluid from the engine used to
drive the well head. The difference between the claim and the state of the art
was the heat source used to heat the liquid in the storage tank. The use of the
well known principle of using engine waste heat to heat a liquid in a vessel
was obvious in light of the inefficient use of a separate heat source.
[11]
Following several requests for reconsideration
and further submissions from the patentee, the Board issued its final decision on
October 29, 2012, the currently contested Certificate of Re-Examination,
rejecting Claims 12-14.
DECISION UNDER
APPEAL
[12]
In the October 29, 2012 decision, the Board
stated that Claims 12-14 were not patentable in view of the prior art.
[13]
Following the approach to obviousness proposed
by the Supreme Court in Apotex Inc v Sanofi-Synthelabo Canada Inc, 2008
SCC 61 [Sanofi] at para 67, the Board stated that it considered the
person of ordinary skill in the art (POSITA) to be “a technician skilled in the
art of oil production.” It took the applicable common general knowledge of that
person to be the information presented as background knowledge in the patent
and found that the problem as disclosed in the patent was “to come up with a
more efficient method and apparatus for heating a liquid storage tank at a well
site.” The Board commented that “as conceded by the Patentee in the letter of
March 6, 2012, it was also generally known to use the heat generated by an
engine to heat fluids.”
[14]
The Board examined Claim 12 in light of the six U.S. patents. It considered that the difference between the state of the art and the
subject matter of the claim was the heat source used to heat the liquid in the
storage tank and said that “the question becomes “Would it have been obvious to
substitute the use of waste heat from the known well head engine for that
conventionally supplied by a separate propane burner?””.
[15]
The Board found that D1, D2, D4, and D5 showed
the use of waste heat from an engine to heat liquid in a vessel, in relation to
oil field operations. D10 and D11 showed the use of waste heat to heat liquid
in a tank and showed the extension of a conduit from the engine into the tank
and back. “These references illustrate that it was a well known principle to
use the waste heat from an internal combustion engine to heat a liquid in a
vessel, both in the field of oil well operations and outside of it. The vessel
to which the waste heat is applied may not be an oil well production storage tank;
however the question is whether it would have been obvious to use the engine
waste heat in such an environment.”
[16]
The Board concluded that given its findings, it
would have been obvious to do what the Patentee did. Novelty was not at issue. The
question was whether the inventive concept would have been obvious to a person
skilled in the art or whether it required any degree of invention. In the
Board’s view, the skilled person in the present case would probably look first
to disclosures in the field of oil well operations, but would not limit the
search to this environment given the more general concern of improving the
efficiency of a system in which a liquid is heated in a vessel. D1, D2, D4, and
D5 related particularly to oil field operations. D10 and D11 showed that the
idea of using engine waste heat on a fluid in a vessel was well known outside
of oil field operations. Even without these two references, the Board would
still consider the invention to have been obvious in view of the other prior
art references and the common general knowledge.
[17]
The Board determined that Claim 13 was obvious
in light of D1, D2, D4, D10 and D11 even with the reference to “exhaust gases”
deleted from the original claim language. There was nothing inventive in
choosing one of the known engine fluid heat sources (engine coolant or
hydraulic oil) over another (exhaust gas) in the Board’s view. Claim 14 was
also obvious, the Board found, because, in light of D4 and D5, it was well
known to use the heat from more than one engine fluid at the same time to heat
a liquid in a vessel.
ISSUES:
[18]
The issues initially posed by the parties on
this appeal can be framed as follows:
1. Was the Board’s
selection of a POSITA reasonable?
2. Was the Board’s
identification of the POSITA’s skill level reasonable?
3. Did the Board
unreasonably base the decision on its perspective and not that of the POSITA?
4. Did the Board
unreasonably conclude that the problem of inefficient heating formed part of
the common general knowledge and prior art?
5. Did the Board act
unreasonably in applying the “obvious to try” test?
[19]
At the hearing, questions arose as to the
interpretation of the reference to “evidence to the contrary” in s 43(2) of the
Patent Act. As a result, the parties were permitted to make post-hearing
submissions as to whether a re-examination request constituted “evidence to the
contrary” and whether the Board bears any onus to search for and consider
countervailing evidence. Having received and considered those submissions, in
my view there is no need to address the first additional question as there is
no dispute between the parties that the US patents cited by the requestor
constituted “evidence to the contrary” within the meaning of s 43(2). I will
address the question of whether the Board bears any evidentiary burden with
respect to the second issue.
[20]
The relevant provisions of the Patent Act are
attached as an Annex to these reasons.
ARGUMENT & ANALYSIS:
[21]
There is no dispute that the proper approach to an
obviousness inquiry is that set out in Sanofi at para 67:
67 It will be useful in an obviousness inquiry
to follow the four-step approach first outlined by Oliver L.J. in Windsurfing
International Inc. v. Tabur Marine (Great Britain) Ltd., [1985] R.P.C. 59
(C.A.). This approach should bring better structure to the obviousness inquiry
and more objectivity and clarity to the analysis. The Windsurfing
approach was recently updated by Jacob L.J. in Pozzoli SPA v. BDMO SA,
[2007] F.S.R. 37, [2007] EWCA Civ 588, at para. 23:
In the result I
would restate the Windsurfing questions thus:
(1) (a)
Identify the notional "person skilled in the art";
(b)
Identify the relevant common general knowledge of that person;
(2)
Identify the inventive concept of the claim in question or if that cannot
readily be done, construe it;
(3)
Identify what, if any, differences exist between the matter cited as forming
part of the "state of the art" and the inventive concept of the claim
or the claim as construed;
(4) Viewed
without any knowledge of the alleged invention as claimed, do those differences
constitute steps which would have been obvious to the person skilled in the art
or do they require any degree of invention? [Emphasis added.]
It will be at the
fourth step of the Windsurfing/Pozzoli approach to obviousness that the
issue of "obvious to try" will arise.
[22]
The parties agree, and I accept, that the
standard of review for the issues on this appeal has been satisfactorily
determined by the jurisprudence to be reasonableness. As stated in Genencor
International Inc v Canada (Commissioner of Patents), 2008 FC 608 [Genencor]
at para 48:
48 On
the facts of this matter, and subject to what was said earlier with regard to
review of issues of natural justice and procedural fairness, the Board made its
decision based on its explicit legislative authority and mandate. I am
satisfied that the substantive questions that were before it were questions of
mixed fact and law and were questions within the extensive expertise of its
members in the context of a legislative scheme intended to introduce a
significant degree of simplicity, brevity and cost saving into a complex legal
regime where determinations or impeachment proceedings have evolved into
processes that are long, complex and expensive. In the circumstances, in
recognition of the high degree of deference that I am satisfied is owed to the
Board in this matter and in matters equivalent to it, I am satisfied that the
appropriate standard of review on the substantive issues arising herein is
"reasonableness" or, put in language often adopted on appeals, the
decision under review for substantive error should not be interfered with in
the absence of "palpable and overriding error".
[23]
The identification of the proper legal test is
a question of law to be reviewed on the standard of correctness: Bell Helicopter Textron Canada Ltée v Eurocopter 2013 FCA 219 [Bell
Helicopter] at para 117. The generally accepted test for obviousness is
whether, at the date of invention, an unimaginative skilled technician, in
light of his general knowledge and the literature and information on the
subject available to him on that date, would have been led directly and without
difficulty to the invention: Proctor & Gamble Co v Beecham Canada Ltd
(1982), 61 CPR (2d) 1 (FCA) at para 87.
1. Was the Board’s selection of a POSITA reasonable?
[24]
The first task in determining whether a patent
is obvious is selecting the appropriate fictional person skilled in the art: Janssen-Ortho
Inc v Novopharm Ltd, 2006 FC 1234 [Janssen-Ortho] at para 90:
[90] [.…] Care must be taken in describing a person skilled in the
art as there could be danger in defining such a person so narrowly that few, if
any, would qualify. Conversely, if the net is cast too broadly, a danger exists
in bringing in those unfamiliar with the field. The Court must take a fair and generous
view as to what sort of person comprises a person skilled in the art. That
person is the ordinary person skilled in the art, not the least qualified or
slowest witted. It must not be too astute or technical in its inclusion or
exclusion of any group of persons…
[25]
The appellant submits that the Board incorrectly
identified the POSITA. This person is to be defined as “having no scintilla of
inventiveness or imagination; a paragon of deduction and dexterity, wholly
devoid of intuition; a triumph of the left hemisphere over the right” per
Hugessen J.A. in Beloit Canada Ltd. v. Valmet Oy (1986), 8 C.P.R. (3d) 289 [Beloit] at p 294.
[26]
In this case, the Board first defined the POSITA
as a “technician skilled in the art of oil production”, then broadened the
field to “oil field operations”, and then included as well, the appellant
argues, the fields of hot water tanks and water wash systems for cars. No
skilled person could have the required knowledge of all of the components of
oil production, let alone oil field operations and hot water tank systems.
[27]
The respondent notes that the Supreme Court has
mandated an expansive and flexible approach to an obviousness inquiry rather
than an overly rigid rule: Sanofi at paras 61-63. In particular, the
Court cautioned about treating the language in Beloit as if it were a
statutory prescription that limits the obviousness inquiry.
[28]
The Beloit definition is set out in the
Canadian Intellectual Property Office Manual of Patent Office Practice at
chapter 9.02.02 (as of January 11, 2012). However, as established by recent
jurisprudence, while the fictional skilled person may be unimaginative, he or
she is deemed to be reasonably diligent in keeping up with advances in the
field to which the patent relates. The POSITA is deemed to be sufficiently
versed in the art to which the patent relates to enable him or her to
appreciate the nature and description of the invention, and to be aware of
those relevant patents and publications which would be discoverable in a
reasonable and diligent search: Whirlpool Corp v Camco Inc, 2000 SCC 67
[Whirlpool] at paras 53, 74; Bell Helicopter, above, at para 65.
[29]
I agree with the respondent that in this case
the Board considered the skilled person to be a “technician skilled in the art
of oil production”. Given the subject matter of the patent, the Board applied
the correct test and in doing so, this was a reasonable selection using general
terms.
2. Was the
Board’s identification of the POSITA’s skill level reasonable?
[30]
The appellant argues that the Board made claims
about the POSITA’s presumed skills that were unsupported by fact. The Board
began with the end result that a drive head exhaust would produce enough heat
to warm a production tank, and then concluded that it would be obvious for the
POSITA to realize this and design a system accordingly. It did not provide any
evidence of what the POSITA would know beforehand; no training manual, no
description from a professional body, and no other evidence of skill level.
[31]
In the result, the appellant argues, the image
of the POSITA adopted by the Board is closer to that of an engineer than a
technician. A technician might be familiar with existing production tank
heating systems and would know how to operate a production tank system and make
minor repairs in the event of problems but would not have the common knowledge
attributed to the POSITA by the Board.
[32]
The Board determined the common general
knowledge to be the background information found in the patent itself. Based
on that information, the skilled person would have the knowledge to recognize
the inefficiency problem and imagine a solution. As held in Whirlpool, supra,
at para 53, the skilled person must have the knowledge necessary to understand
and appreciate the matters described in the patent. The Board was not obliged
to describe the skilled person’s deemed knowledge beyond that to any greater
degree. It noted that US patents D1, D2, D4, and D5 were within the area of
oilfield operations and the notional skilled person would have been aware of
the matters they encompass. While patents D10 and D11 did not relate to oil
well operations, they illustrated that the principle of using engine waste heat
to heat a liquid in a vessel was known outside the oil field environment.
[33]
These findings were open to the Board. While the
Court may have reached a different conclusion, it must defer to the Board on
the reasonableness standard. As stated by the Supreme Court in Dunsmuir v
New Brunswick, 2008 SCC 9, at para 49:
49 Deference
in the context of the reasonableness standard therefore implies that courts
will give due consideration to the determinations of decision makers. As Mullan
explains, a policy of deference "recognizes the reality that, in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise
or field sensitivity to the imperatives and nuances of the legislative regime":
D. J. Mullan, "Establishing the Standard of Review: The Struggle for
Complexity?" (2004), 17 C.J.A.L.P. 59, at p.
93. In short, deference requires respect for the legislative choices to leave
some matters in the hands of administrative decision makers, for the processes
and determinations that draw on particular expertise and experiences, and for
the different roles of the courts and administrative bodies within the Canadian
constitutional system.
[Emphasis added]
[34]
I agree with the respondent that s 43(2) of the Patent
Act does not impose a burden on the Board to seek out and locate evidence
independently to support its conclusions on the material before it. This was
not an impeachment or infringement action in which an evidentiary and
persuasive burden would fall on the party contesting the validity of the patent.
Rather it was a two-stage administrative re-examination process: Novozymes v
Genencor International Inc, 2007 FCA 129.
[35]
In the first stage, the requestor must satisfy
the Commissioner that there are substantial new grounds of patentability that
justify the establishment of an examination board. In the second, the patentee
is given notice of the Commissioner’s determination and is entitled to make
submissions and to propose amendments to the patent. In this instance, the
Board provided the appellant with its views regarding the POSITA and its common
knowledge on two occasions and the appellant responded with submissions to both
communications. The Board considered these submissions and explained its
reasoning in its letter of October 29, 2012.
[36]
As discussed by Gibson J, in Genencor, supra,
at para 4, such proceedings are intended to be a “relatively summary and inexpensive alternative to a
full-blown impeachment process”. They are analogous to decisions made by the
Commissioner to refuse to grant a patent under s 40 of the Act. It is
inappropriate to impose the burdens that exist in adversarial judicial
proceedings for impeachment actions on an administrative re-examination board: Genencor, supra, at para 70. The
Board is not an adverse party in these proceedings as it has no interest in the
outcome. The Board is owed a high degree of deference for its expertise,
especially with respect to factual determinations such as its view of the
relevant POSITA and their common knowledge.
3. Did the Board unreasonably base the decision on its perspective
and not that of the POSITA?
[37]
The appellant submits that the Board made
several statements in its decision indicating that it was conducting the
assessment from its own perspective: “We see nothing inventive” . . . “we see
nothing inventive” . . . “our opinion on the patentability”. The mentions of
the POSITA elsewhere in the decision paid mere lip service to the test to be
applied, the appellant contends.
[38]
In my view, this argument is unfounded and
amounts to a complaint about the wording chosen by the Board to express its
reasons for decision. The use of first-person language, without more, did not
establish a failure to apply the correct test. As stated by the Supreme Court
in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 18, perfection in the wording of
reasons is not the standard. Reviewing courts are to determine whether the
Tribunal’s reasons adequately explain the basis of its decision. Again, the
guiding principle for the court is deference. Reading the decision as a whole,
I am satisfied that the Board did not substitute its own perspective on the
matter for that of the notional skilled person.
4.
Did the Board unreasonably conclude that the problem of inefficient heating
formed part of the common general knowledge and prior art?
[39]
The appellant argues that in many cases, as in
this instance, inventiveness lies in recognizing that a problem exists. The
appellant recognized that the current production tank heating method was
inefficient, and invented a solution to this problem. In the patent, the
problem statement appears directly after a header that reads “SUMMARY OF THE
INVENTION” and thus clearly was presented as part of the invention rather than
as part of the background, the appellant argues. The Board thus based its
rejection on an incorrect assumption that the “inherent inefficient method” of
heating the tank with a separate heat source was part of the prior art and
common general knowledge.
[40]
While the Board did not cite any evidence other
than the patent for the proposition that there was a known problem of
inefficient heating in oil production storage tanks, it was reasonable for the
Board to consider the information found under the “SUMMARY OF THE INVENTION”
heading, to be part of the background knowledge which the skilled person would
have. I agree with the respondent that it is an elevation of form over
substance to say that because the problem which the invention sought to solve
was presented under that heading, the matters described there were part of the
invention and could not have been known to the skilled person.
5.
Did the Board act unreasonably in applying the “obvious to try” test?
[41]
The appellant argues that the Board, in stating at
page 9 of its decision that “it is our view that the skilled person would not
have, in light of its inherent advantages, simply dismissed the idea without
verifying its feasibility”, in effect applied the “obvious to try” test
described in Sanofi, supra, at paras 67-71. It gave no reasons
for using that test, as suggested by the Court of Appeal in Wenzel Downhole
Tools Ltd v National-Oilwell Canada Ltd, 2012 FCA 333 [Wenzel FCA]
at para 96.
[42]
In the alternative, the appellant argues, the claimed
invention was unobvious. There is no evidence that the POSITA would have known
of the problem. It was unobvious that the solution would work as contemplated. The
Board did not show that it was clear to a POSITA that a drive head exhaust
could supply sufficient energy to heat a production tank which can hold from
32,000 to 64,000 litres, or that the heat level could be regulated. Moreover,
the appellant argues, the fact that one of two energy sources is removed
completely, and yet the tank is still heated, is an unexpected result.
[43]
The “obvious to try” test contemplates that the
mere possibility that a skilled person may find an invention is not enough to
show that it is obvious and unpatentable. Rather, the invention must be
self-evident from the prior art and common general knowledge. In the context of
the decision as a whole, one sentence in the Board’s reasons does not amount to
an expectation on the part of the Board that the skilled person would engage in
the type of experimentation described in Sanofi, supra, at para
68. As discussed in Wenzel FCA, supra, at para 99, the Board
“appeared to be referring to the testing that one
would expect any diligent manufacturer to do before putting any product on the
market, irrespective of whether such product embodied a new invention or a
proven design.”
[44]
The respondent submits, and
I agree, that in this case, the Board was of the view that the skilled person
would have adapted the existing oil well production storage tank heating system
to come up with the claimed design; the use of waste engine heat to heat the
storage tank would have been evident from the prior art, even if it was not
known that the amount of heat was sufficient for that purpose without
verification. The skilled person would have had to confirm that the modification
would provide sufficient heat, but would not have had to experiment to invent
the concept. Accordingly, the “obvious to try” test was neither required nor
used.
[45]
For these reasons I conclude that the appellant
has not met its burden of establishing that the Board’s decision was
unreasonable and, therefore, dismiss the appeal. In the language of appeals, as
suggested by Justice Gibson in Genencor, supra, I find no
“palpable and overriding error” in the Board’s decision.
[46]
The respondent shall have its costs calculated
on the normal scale.
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