Jeremy Want

Following the dismissal of an application to enforce a letter rogatory from a U.S. court against a non-party, the court determined the issue of costs.

The respondent successfully resisted the application by demonstrating it had searched its records and that the request was overly broad and premature.

The court found the respondent acted reasonably and did not thwart a legitimate inquiry.

Costs were awarded to the respondent on a partial indemnity scale, fixed at $32,053.03.

The applicant, Cisco Systems Inc., sought to enforce a Letter Rogatory from a U.S. District Court against N. Harris Computer Corporation, a non-party in the U.S. patent litigation, to obtain documents and depositions.

Harris resisted the order, arguing it was burdensome and unnecessary, and that the evidence could be obtained from a party to the U.S. litigation (Video Solutions).

The court declined to enforce the order at this time, finding it premature, but ordered Harris to preserve legacy records and allowed Cisco to renew the application with further evidence after certain steps are taken in the U.S. litigation.

The appellant infringed a patent held by the respondents for metallocene linear low-density polyethylenes (thin but strong plastics).

Following a liability finding, a reference judge awarded the respondents an accounting of profits equal to the appellant's actual revenue minus actual full costs, and also awarded springboard profits — profits earned post-patent-expiry causally attributable to infringement during the patent period.

The majority dismissed the appeal, holding that an accounting of profits requires disgorgement of all profits causally attributable to the invention using a three-step framework; the appellant's concession that no non-infringing option existed precluded reduction of the award; and springboard profits are legally permissible and factually supported.

Côté J. dissented, arguing the differential profit approach should have been available and the matter remitted to the Federal Court.

The defendants brought a motion to strike portions of the testimony of two of the plaintiffs' witnesses at trial, arguing that the plaintiffs failed to meet their discovery obligations regarding certain documents.

The defendants contended that the corporate representatives lacked knowledge during discovery but provided more detailed evidence at trial, and that certain heavily redacted agreements were improperly used.

The Court dismissed the motion regarding the unredacted exhibits, finding no refusal to answer questions and noting the defendants failed to use procedural tools like undertakings or substitution to address the deficiencies.

However, the Court granted the motion to strike testimony related to the heavily redacted commercial agreements, holding that the minimal disclosure prevented their use to adduce further evidence at trial.

In a patent infringement action between hockey equipment manufacturers, the parties brought cross-motions to exclude various expert reports.

The Court dismissed the defendant's motion to exclude a report under Rule 248, finding the expert relied on disclosed documents.

The Court granted the defendant's motion to strike the plaintiff's expert reply report on reasonable royalty as improper reply.

The Court exercised its discretion to admit another expert reply report on accounting for profits.

The plaintiff's motion to strike portions of the defendant's responding and reply reports was dismissed.