Instrument: "Case Management
Guidelines for NOC Applications", further to the
Patented Medicines(Notice of Compliance)
Regulations, SOR/93-133 (as am.) (the
Date released: Presented 12 May 2016 at CBA IP Day
Town Hall; on the Federal Court website 20 May 2016
The Federal Court has introduced new guidelines for the
case-management of prohibition applications under the
Regulations. The new guidelines were presented by Chief
Justice Crampton, Justice Manson, and Prothonotary Tabib at the
Canadian Bar Association's 2016 IP Day Town Hall meeting. They
build upon a practice direction that has been in effect for
proceedings of this kind since 7 January 2008 and outline
procedures that emphasise early scheduling, strict time management,
narrowing of issues, and limiting the amount of material to be
reviewed by hearing judges. They also introduce a general rule that
all Federal Court cases (including infringement/impeachment and
section 8 actions) will be heard on a fixed-end basis.
As explained at the Town Hall, these guidelines are effective
immediately and apply to all new prohibition applications, as well
as ongoing matters provided they are early enough in the
The new guidelines are not absolute, but will be applied by
case-management and hearing judges in the absence of exceptional
reasons for departing from this approach. In part, they reiterate
the process already defined by the Regulations and
familiar to litigants today. Among the new policies introduced, the
following are highlights:
Claims construction. Parties are now
required to submit claims charts, in a format to be set by the
Court, prior to hearing. A CMC will follow with a view to limiting
claims construction issues. At the Town Hall, claims charts and
construction were a topic of significant discussion. The Court
wants parties to consider having claims construction decided before
the main hearing and, if the parties agree, will try to facilitate
this under a process akin to the Markman hearings used for
this purpose in the United States. This is expected to be an area
of ongoing interest and development.
Hearings and evidence. Hearings will not
be scheduled for more than five days; they should generally be
completed in two to three days. All hearings and trials generally
in the Federal Court will be conducted on a fixed-end basis (i.e.,
in the time allotted at scheduling). Parties remain limited to five
experts each. These guidelines may be varied in extraordinary
circumstances. In addition, parties are now required to serve and
file compendia based upon the references cited in their respective
memoranda of fact and law. The Court also welcomes outlines and
compendia of argument.
Early and increased case management. A
case-management conference presided over by both the
case-management and hearing judges should be held within 30 days
after the requisition for hearing has been filed; at the Town Hall,
it was emphasised that this filing should occur as early as
possible to facilitate early scheduling of a hearing date. Further
case or hearing-management conferences should be held two months,
90 days, and 30 days before the scheduled hearing date. As the
hearing approaches, the parties will be expected to discuss motions
and other scheduling, settlement and mediation prospects, narrowing
and identification of issues and evidence, and agreed statements of
facts and/or documents (with significant costs consequences for
parties that fail to reasonably agree).
To access a complete copy of the new guidelines, as well as the
previous practice direction, follow the links below.
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