Experimental Testing In Patent Actions: Federal Court Issues Notice To The Profession

Experimental testing and patent infringement actions: they often go hand-in-hand. With respect to providing notice to other parties of experimental testing, the patent litigation bar has been working under a salutary, unofficial rule since at least the 1960s.

Notwithstanding this salutary rule, its application has been varied and has not been strict. Accordingly, litigants faced some uncertainty with respect to the admissibility of evidence from experimental testing.

Recently, the Federal Court of Canada issued a Notice to the Profession with respect to experimental testing in patent actions. The Notice to the Profession codifies existing and general practices for patent infringement actions and provides more structure and certainty for litigants considering experimental testing in connection with their actions.