FCA Finds Notice To The Profession Re: Experimental Testing Does Not Apply To Pre-Litigation Testing

On April 8, 2020, the Federal Court of Appeal (FCA) released a decision finding that the Federal Court Notice to the Profession re: Experimental Testing (Notice) does not apply to pre-litigation testing: Apotex v Bayer, 2020 FCA 71 (reasons apply equally to Teva v Bayer, 2020 FCA 72).

The Notice, which issued in May 2016, requires a party to a patent infringement or validity action intending to rely on evidence of "experimental testing conducted for the purpose of litigation", to provide reasonable notice of the testing to the other parties. Such notice must include, among other information, "when and where the adverse parties' counsel and representative(s) can attend to watch the experiment(s)". The Notice further provides that unless the requisite notice is given, the party cannot lead the evidence without leave of the Court.