Written By Dominique T. Hussey, L.E. Trent Horne and Jeilah Y. Chan

This week's most noteworthy development is not a single case—it is a practice direction that will govern how all complex intellectual property cases will be tried. The new Trial Management Guidelines formalize trial management practices that several members of the Federal Court of Canada have recently implemented on an individual basis. The guidelines are focused on the efficient, expedient and proportionally fair use of trial time for actions scheduled for five days of hearing or more. This aim is achieved by encouraging parties to cooperate wherever possible, use expert evidence efficiently, and dispense with contested motions early. This will result in the effective use of trial time by limiting the focus to unresolved issues.

Case

Trial Management Guidelines: Federal Court of Canada Notice to the Parties and the Profession

IP Type

Patent, trademark, copyright, industrial design

Summary

Cooperate:  Discuss and Disclose

The guidelines promote cooperation among the parties, in some cases encouraging and in others requiring discussion and disclosure before the trial. Under the guidelines:

The parties are required, before the trial, to: 

• exchange a brief description of the proposed areas of testimony of fact witnesses; and
• submit expert reports, an agreed statement of facts, a list of issues that remain in dispute, and a joint book of documents.

The parties are encouraged, before the trial, to:

• prepare and deliver a joint primer on the pertinent technology and scientific principles in actions involving scientific issues;
• submit a joint statement of issues;
• share lists of read-ins from oral discovery;
• provide joint compendia (collected excerpts of pertinent evidence and law) – for which best efforts are required; and
• discuss the use of witness statements and fact stipulations where cross-examination may not be necessary.

Use Experts Efficiently

Particularly in patent litigation, experts testifying at cross-purposes without identifying areas of agreement, and disputes pertaining to qualifications and the scope of evidence, can occupy and waste significant trial time and put the parties to great expense. The guidelines address those issues as follows:

The parties are required, before the trial, to: 

• submit expert reports to be relied upon at trial together with a list of issues that remain in dispute; and
• deliver an expert report only if the delivering party is prepared to undertake to the Court to call that expert at trial. 

The parties are encouraged to: 

• raise, before the trial, any objection to expert reports and qualification;
• use slide presentations for the purpose of making the examination more concise and efficient; and
• make examination in chief concise and limit it to key issues for the Court to consider.

Make Motions Early

The guidelines expressly discourage contested motions practice during the trial and encourage the parties to address contested issues in advance. 

Fundamentally directed to streamlining trials by limiting the issues in dispute, the guidelines build on the Court's efforts in recent years to improve practice and procedure with a view to achieving increased proportionality in court proceedings.

For further information on how to protect and enforce your intellectual property rights, contact Dominique Hussey, Jeilah Chan, or another member of the Intellectual Property Litigation team.

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