Called Frosters, the gangly machines crawl along the canal giving the world’s largest skating rink, winding through the heart of Ottawa, its smooth, hard surface
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Two Canadian inventors of giant ice resurfacing machines that tame the Rideau Canal each winter into the world’s largest skating rink have lost the patent for their unique contraptions because email alerts warning of an unpaid patent fee were caught in a junk mail folder.
Known as Frosters, the machines crawl along the Rideau Canal Skateway at night, giving the nearly eight kilometres of outdoor ice that winds through the heart of Ottawa its smooth, hard surface.
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The Froster was conceived by Robert Taillefer, whose company Capital Property Guardians has the contract for maintaining the skateway, and it was built by his friend, Sylvain Fredette, of Fred Welding.
When the Froster was unveiled in 2011, four years into Taillefer’s first contract to maintain the canal’s ice, Taillefer said his inspiration came from his frigid nights flooding the ice by holding a firehose: “When I was flooding at night, 30 degrees below, it was just inhuman,” he told a reporter. “I thought, there has to be a better way.”
A traditional Zamboni couldn’t do it. They’re great on a hockey rink but are too small and narrow for this job; they don’t carry enough water and can’t smother the huge canal surface fast enough.
Taillefer conjured up a better way and hired Fredette to bring it to life. Fredette used a lot of aluminum on the first Froster to keep it as light as possible so it wouldn’t sink through the ice. Their big innovation was long extensions, like skeletal arms or wings that unfold on each side, stretching to span more than 18 metres when spraying water and squeegeeing it level as it moves along the frozen canal.
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It took Taillefer and Fredette four years to perfect. When they nailed it, they submitted their invention for a patent, titled “Wide Ice Resurfacing Machine.”
Their invention was filed with the Canadian Intellectual Property Office by a patent agent on Jan. 21, 2010. Winter was an important time for their idea, their machine, and their patent.
Each winter, an annual fee of $125 was due to maintain their patent. Taillefer’s arrangement with his patent agent was for the agent to email him a notice when a fee was due and wait for instructions on payment, court heard in a case launched by Taillefer.
Their system of communicating by email worked for nine years, court was told. Then, for unknown reasons, the agent’s emails stopped landing in Taillefer’s inbox and Taillefer didn’t seem to notice.
The agent sent its usual early notice to Taillefer of a pending annual maintenance fee in September 2019, court heard. A reminder was emailed on Dec. 17, and two more, one on Jan. 6 and the other on Jan. 20, 2020. When no instructions were received in reply, the fee wasn’t paid. A similar pattern came that spring when the agent sent alerts to Taillefer that the deadline for correcting the missed payment was approaching. Still another email was sent that October by the agent, forwarding a notice from the patent office that his ice-machine patent had expired.
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On Oct. 29, 2020, Taillefer found that last message in his junk email folder only “by chance,” court was told.
He instructed his agent to try to reclaim the patent, but the Commissioner of Patents refused, in late December 2022. The commissioner said Taillefer and his agent did not take “due care” to keep the patent in good standing, according to court records.
Taillefer took his complaint to the Federal Court, seeking a judicial review of the commissioner’s decision. His case was supported by the Intellectual Property Institute of Canada, a professional association of patent and trademark agents, lawyers, and academics.
Lawyers for Taillefer argued that a demonstrated system of communication worked reliably in the past, and that the breakdown in communication could not have been anticipated. Government lawyers argued that common-sense measures should have been taken to ensure that Taillefer and his agent could maintain effective communication when facing important deadlines.
The judge, Angela Furlanetto, agreed with the government.
“It is relevant that the email failure did not relate to a single piece of correspondence between the Agent and Applicant, but rather a string of email reminders and reporting emails that spanned over a year,” Furlanetto wrote in her 2024 judgment.
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Taillefer next challenged Furlanetto’s decision in the Federal Court of Appeal.
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On Tuesday, he had chilling news.
The appeal court agreed that the judge’s assessment was correct and the commissioner’s decision was reasonable: “In the absence of a backup system, including alternative communications methods, the unfortunate circumstances experienced by the Appellant were an accident waiting to happen,” Judge Gerald Heckman wrote on behalf of a panel of judges.
It is not known what impact the patent’s expiration might have. It does not prevent Taillefer from using the Froster, nor for the Rideau skateway to keep being groomed by it, but it likely means other companies, including competitors, could copy the design to build the specialized machines for their own use.
Taillefer did not respond to calls and emails from National Post over two days asking for comment on the case.
Despite Taillefer’s battles trying to salvage their patent, Fredette said it all comes as a surprise to him.
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Reached at his welding shop in Wendover, Ont., on Wednesday, Fredette said he had no idea the patent had been in jeopardy, about the court battles, or that the patent had been lost.
“I didn’t know about it,” Fredette said. “I will talk to Bob first and I will call you back on that,” he said. He has not yet called back.
The National Capital Corporation (NCC), which controls the canal and skateway, said Capital Property Guardians, Taillefer’s company, has a seven-year ice maintenance contract that is up for renewal in 2029.
A spokeswoman for the NCC declined to comment on the patent issue.
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