Know When To Hold ‘Em, Know When To Fold ‘Em: Cost Consequences For Maintaining A Weak Patent Infringement Claim

As the saying goes: winners never quit, and quitters never win. However, MediaTube Corp. and NorthVu Inc. v Bell Canada, 2017 FC 6, provides a cautionary tale when applying this saying to the realm of patent infringement litigation when there is a low likelihood of success.

Here, the plaintiffs brought an action for patent infringement, alleging Bell's FibeTV and FibreOp TV services infringed several claims of Canadian Patent No. 2,339,477 (the '477 Patent). This patent dealt with systems and methods for redistributing audio/visual signals to a plurality of communication interfaces (e.g., television sets) over conductors. However, over the course of the action, nearly all of claims related to infringement were withdrawn by the plaintiffs, and the issue of cost consequences arising from the behaviour of both the plaintiffs and the defendant became central to the action.