In Canada, most patent litigation takes place in the Federal Court. As with most courts, the Federal Court seeks to balance its limited resources with ensuring access to timely justice. To achieve its goal of scheduling trials within two years, the Court has implemented several measures.

The changes that were made meant that both the judiciary and parties to litigation have to modify their practices and in some cases long-standing approaches to litigation. As noted in one decision, litigants could no longer expect cases to “creep along”. As Justice Snider in another decision, “it is not realistic, practical or reasonable to merely shorten the time between the filing of a statement of claim and the start of the trial if the parties and their counsel do not also adapt their litigation practice and strategies to the shorter time frames.”

Rule Changes

Rule changes to allow for Summary Judgment () and Summary Trials () were registered in . So far only a couple of proceedings have taken advantage of these new procedures—a trade-mark counterfeiting case (Louis Vuitton Malletier SA v. Singga Enterprises (Canada) Inc, ) and a damages proceeding under of the PM(NOC) Regulations (Teva Canada Ltd. v Wyeth LLC, ).

There were also to allow more flexibility with expert witnesses, especially in patent proceedings to reduce the “length of proceedings”. It is unclear what effect these rules on experts have had on .

Case Management

The Court announced it would allow case management to be requested by way of letter early in the proceeding so that a case manager can assist early in the process. Prothonotaries, who are typically appointed as case managers, are given significant deference to manage proceedings.

In the two years prior to the 2009 announcement to streamline litigation, the first mention of case management in the court docket for patent infringement actions took place on average approximately 11 months after an action was started. In the two years following the announcement, the first mention of case management took place about 4 months earlier at approximately 7 months.

Early Trial Dates

The court is also trying to schedule trial dates earlier in the proceeding, often prior to pre-trial conferences. The parties and the case manager may try to identify a point when most of the issues are identified and the time needed for discovery, expert reports and other pre-trial steps are clarified before a trial date being scheduled. Justice Harrington that:

The general principle under is that the rules are to be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits. The Court has control over its own process and may, in appropriate circumstances, vary a rule or dispense with compliance. It is certainly not unheard of , especially in case management, for the Court to fix trial dates before pleadings are closed, and before examinations for discovery are complete.

According to the most recent Federal Court public schedule, there are trial schedules as far into the future as September 2014.

In spite of these pressures, the length of time parties have to wait to be allocated a trial date is getting shorter. Often, having a fixed trial date encourages parties to work towards that date and reduces ‘slippage’ in schedules. In 2009, trial dates were allocated on average about 5.4 years after a proceeding had been started. By 2011, trial dates were being allocated approximately 2.5 years after the Statement of Claim was filed.

Even though trial dates were being allocated earlier in proceedings, the start dates of the trials were still on average about four years after the Statement of Claim.�� Often proceedings are settled or discontinued prior to trial and only about 15 patent infringement cases went to trial in 2009 to 2011.

While contemplates that the scheduling of the trial will be discussed at the Pre-Trial Conference, these trends suggest that Prothonotaries and the Chief Justice are often scheduling trials prior to a pre-trial conference.

Perhaps because of the early scheduling of trial dates, the Court often has to many patent trials. Hopefully, the Federal Court and parties can take advantage of the cancelled dates.

Justice Snider noted after the perindopril patent infringement action was heard two years after the Statement of Claim that “[a]rguably, the time requirements for a path to trial that took four years and one that took less than two years are the same; the difference is that the same volume of work must be carried out in half the time” ().

Future

While ordering that a trial date be given up, Justice Hughes identified the pressure the court is under to identify early trial dates for parties (in ):

A second reason respecting the trial date is that consideration must be given to the pressures on this Court to find trial dates for other litigants in other cases. Even now, some litigants are not expecting trial dates until 2015.

The Federal Court has also recognized that much of the day-to-day case management falls to Prothonotaries. The Court currently has six Prothonotaries but does not necessarily have for those positions. Also, in the past year, the Court has had to reduce its use of deputy judges as result of the decision.

Conclusion

The above analysis focuses on patent infringement actions but it should be recognized that the Federal Court handles a diverse set of proceedings each with their own demands ranging from immigration matters, tax, maritime, as well as other areas of intellectual property including PM(NOC) prohibition proceedings.

The Federal Court has taken significant steps to reduce the backlog of cases and move case towards resolution. The improvements that can be made pre-trial now appear to be limited by the availability of judges to hear trials.

Alan Macek is an associate at ��and��publishes a blog and daily email on developments in intellectual property law in Canada at .

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centered on remedies for patent infringement. In the problem’s hypothetical scenario, the defendant had admittedly infringed the plaintiff’s valid patent. What remained to be determined was the appropriate quantum of damages and whether a permanent injunction ought to be granted for the remainder of the patent’s life. This simple premise was greatly complicated by a number of carefully worded situational factors that allowed for compelling arguments to be made on behalf of either party.

Eight teams from across Canada participated in the competition this year: Osgoode Hall Law School, Queen’s University, the University of Alberta, the University of Ottawa, the University of Toronto, the University of Victoria, the University of Windsor and Western University.

The competition began Friday midday with the Fox IP Lecture, this year delivered by Osgoode’s own Professor David Vaver. His speech, entitled “Intellectual Property: Is it Still a ‘Bargain’?”, evaluated the common view of intellectual property rights as a bargain struck between creators and the state viz the public. As always, Professor Vaver’s message was as thought-provoking as it was eloquently delivered. In the words of thanks delivered by Justice Cronk of the Ontario Court of Appeal, it was apparent to all in what high regard the legal community – both in Canada and internationally – holds Professor Vaver.

The first of two preliminary rounds began shortly after Professor Vaver’s lecture in the Federal Court’s courtrooms in downtown Toronto. Each preliminary round had three����from both the judiciary and the intellectual property bar. After the first day of competition, we enjoyed a reception – graciously hosted by Dimock Stratton LLP – where we got the chance to socialize with the other schools’ competitors as well as various members of academia, the judiciary and private practice. It was incredibly exciting to speak to so many of the judges whose decisions we had become familiar with over the course of our research and in law school more broadly. These were the true celebrities to us law students; it was fascinating to get a sense of the judges’ personalities and listen to their perspectives on various matters of law and life.

The second preliminary round began early Saturday morning and the semi-finalists were announced shortly after lunch. Our Respondent team, comprising Kyle Rees and Alex Chang, were among the fortunate few who progressed. Following an excellent performance in the semi-finals, they went on to the final round and were only narrowly beaten by the opposing team from Western University. The panel for the final round included Justice Marshall Rothstein of the Supreme Court of Canada (IP Osgoode Advisory Board Member), Chief Justice Randall Rader of the United States Court of Appeals for the Federal Circuit, Justice Eleanore Cronk of the Ontario Court of Appeal, Justice Edgar Sexton of the Federal Court of Appeal, and Justice Roger Hughes (IP Osgoode Advisory Board Member)��of the Federal Court. To say it was an active panel would be a staggering understatement. Every mooter who stood before the panel was met with an overwhelming barrage of questions and comments, but each, to his credit, maintained his composure and offered thoughtful responses.

The were announced at the awards dinner on Saturday night at the University Club. The Harold G. Fox Cup for the best mooting team was awarded to Charles Pettypiece and Benjamin Reingold of Western University. The Donald F. Sim Award for the best oral advocate was given to Vanessa Ibe of the University of Windsor. Alex Wai and Christopher Langan of the University of Toronto earned the Gordon F. Henderson Award for the best factum. Charles Pettypiece of Western University was also awarded the Dimock Stratton LLP award for the best mooter in a non-graduating year. Following dinner and the presentation of awards, we enjoyed our second reception and had another chance to mingle with the other competitors and panellists. This experience itself was reason enough to have participated in the competition.

The team would like to offer profound thanks to the many people who made for such an engaging and successful competition. Thank you to all of the organizers, in particular co-chairs Professor Emir A.C. Mohammed from the University of Windsor and Angela Furlanetto of Dimock Stratton LLP, as well as their many assistants from both camps. Thank you to all of the many for their remarkable generosity. On a more personal note, sincerest thank you to our coaches Casey Chisick (IP Osgoode Advisory Board Member), Shane Hardy and Tim Pinos of Cassels Brock for their invaluable assistance and support in the months leading up to the competition.

(from left) Amanda Laren, Aaron Kucharczuk, Dan Whalen, Alex Chang and Kyle Reese��comprised the 2012 Harold G. Fox Moot team for Osgoode Hall Law School.

��Daniel Whalen is a JD Candidate at Osgoode Hall Law School and a member of this year's Harold G. Fox Moot team for Osgoode Hall Law School.

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