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Motion for leave to file expert reply evidence on a summary judgment motion dismissed.
The plaintiffs sued the defendant for patent infringement.
The defendant brought a summary judgment motion based on the prior use defence under section 56 of the Patent Act.
In response, the plaintiffs filed an expert affidavit addressing claim construction and infringement.
The defendant then moved for leave to file expert reply evidence, arguing that claim construction and infringement were not raised in its summary judgment motion.
The Federal Court dismissed the motion for leave to file reply evidence.
The Court found that the issues of claim construction and infringement should have been anticipated by the defendant as they are central to the litigation and the application of section 56.
Furthermore, the defendant failed to include a copy of the proposed reply evidence in its motion record, precluding the Court from assessing its responsiveness and necessity.
