Mark Davis

In an action for patent infringement, the defendants sought to examine an employee of the plaintiff's French subsidiary as the plaintiff's discovery representative.

The Case Management Judge dismissed the motion, holding that Rule 237(3) of the Federal Courts Rules does not permit the Court to compel a party to accept an employee of a subsidiary as its discovery representative.

The defendants appealed to a judge of the Federal Court.

The Court affirmed the Case Management Judge's decision, confirming that an employee of an affiliate is not a "representative" under Rule 237 unless the party agrees to be represented by them.

The appeal was dismissed with costs.

Amgen brought a patent infringement action against Pfizer regarding a biologic drug, filgrastim.

Pfizer counterclaimed that the asserted claims of the patent were invalid for obviousness, material misrepresentation, and insufficiency.

The court found that the asserted claims were obvious to try as of the invention date in 1985, given the state of the art and the routine nature of the required work.

The court dismissed the allegations of material misrepresentation and insufficiency.