The Federal Court has published a Notice to the Profession on experimental testing in patent infringement and validity actions. It requires that notice be provided at least two months prior to the service of expert reports and unless notice is provided, the party shall not lead evidence at trial as to the experiments except with leave of the Court.

The Notice to the Profession was published today, entitled “Experimental Testing” (PDF).

The notice of the experimental testing to be provided is said to include:

• the facts to be proven by such testing;
• the nature of the experimental procedure to be performed;
•  when and where the adverse parties’ counsel and representative(s) can attend to watch the experiment(s); and
• when and in what format the data and test results from such experiment(s) will be shared with the adverse parties.

Disputes regarding the experimental testing are to be resolved by the Case Management Judge.

In a recent decision (2014 FC 55), Justice Hughes admitted testing held without notice to the other side noting that there was no rule in the Federal Court on testing for trial:

 [63] Janssen made a motion to be dealt with at trial to exclude the evidence as to this testing conducted by third parties at the request of AbbVie. In particular, Janssen moved to exclude the evidence of Ms. Jin and Dr. Hughes.

[64] Unlike the practice in the United Kingdom as described in the “White Book”, Civil Procedure, Volume 2, 2013, Sweet & Maxwell, London at page 730, there is, as of yet, no Federal Courts of Canada Rule specifically directed to testing conducted for the purposes of trial. In Omark Industries (1960) Ltd  v Gouger Saw Chain Co, (1965) 1 Ex C R 457 at page 516, Justice Noel discussed a “salutary” rule to the effect that an opposite party should be given notice of and an opportunity to attend at such experiments. He did, however, also say that an ex parte test may be admissible, subject to weight, particularly where, in his case the opposite party could readily have conducted the same test. Most recently Justice O’Reilly of this Court in Apotex Inc.  v.  Pfizer Canada Inc., 2013 FC 493 at paragraph 40,held that where a party had ample notice as to the testing and ample knowledge as to what would be done, a party cannot be held to say that the testing results are inadmissible because the party did not attend.