Sharn Mashiana

This decision deals with the quantum of costs awarded to the defendant following a patent infringement action where the defendant was successful in defending against infringement.

The defendant sought lump sum costs and relied on an offer to settle.

The court found the offer to settle non-compliant with Rule 420 as it was not made 14 days before trial.

The court also found the defendant's conduct during the litigation unnecessarily expanded the proceeding.

Costs were awarded at the middle range of Column III, and the defendant's primary expert fees were capped at two-thirds of the billed amount.

The plaintiff brought an action alleging the defendant infringed claims 1 to 8 of a patent relating to a modularized well pad system for heavy oil production.

The defendant counterclaimed that the patent was invalid for obviousness.

The Federal Court construed the claims and found that the defendant's well pads did not infringe because they lacked the essential element of having a plurality of flow lines on a first, lower level.

The court dismissed the defendant's obviousness attack, finding that the placement of the steam injection flow line on the lower level would not have been obvious to a skilled person.