Recyclability to Patentability: The Coca-Cola Company v. Canada (AG), 2023 FC 424

In The Coca-Cola Company v. The Attorney General of Canada, 2023 FC 424, the Coca-Cola Company (“TCCC”) appealed a decision of the Commissioner of Patents (the “Commissioner”) refusing to grant a patent on Canadian Patent No. 2,718,279 (the “Application”) on the basis that the claims in the Application were obvious. The Federal Court allowed the appeal in part. It held that the Commissioner erred in its obviousness assessment of one of TCCC’s claims and referred the matter back for redetermination. The remainder of the appeal failed to identify any reviewable errors.

In summary, TCCC is the owner of the Application which relates to plastic beverage and food containers and describes methods for producing these containers with polyethylene terephthalate (“PET”) polymers where its components are derived, at least in part, from bio-based materials. Most PET polymers are produced using petroleum-derived components. Throughout the Application’s prosecution, it encountered numerous objections based on a lack of novelty and obviousness in view of US Patent No 6,500,890 (“D5”), Japanese Patent Application No 2007-176873 (“D6”), and the common general knowledge (“CGK”). When the Application reached the Commissioner, after the Patent Appeal Board’s preliminary review, TCCC provided an amended set of 18 claims (the “Proposed Claims”). The Commissioner found that given the teachings of D5 and D6, and the CGK, the Proposed Claims would have been obvious to a person of ordinary skill in the art (“POSITA”).