Federal Court Issues Practice Notice On Experimental Testing For The Purpose Of Patent Litigation

The Federal Court of Canada has issued a Notice to the Profession clarifying an issue that frequently arises in Canadian patent litigation. The Notice confirms that patent litigants intending to rely at trial on testing conducted for the purpose of the litigation are required to provide the adverse party with advance notice of the testing, and an opportunity to attend.

The Notice to the Profession, issued February 27, 2014, delineates certain steps that a party to a patent infringement or validity action must take if it intends to establish any fact in issue by experimental testing conducted for the purpose of the litigation. Pursuant to the Notice, a party seeking to rely on such testing must provide the adverse party with notice of the testing no later than two months before the scheduled service of the expert report(s) in chief, and the notice must include: