For my recent article for Slaw, I tracked all the patent infringement proceedings started over the three year period 2017 to 2019. Of the 140 cases, nine have gone to trial, the fastest in 29 months. Over half of cases are resolved in less than two years, typically by discontinuance/settlement.

The article was originally published November 10 on Slaw. It is reproduced below:

I looked at all the patent infringement cases started in the Federal Court over a three-year span 2017 to 2019. There were about 140 cases in this group of which about 24% are still pending today including four waiting on trial decisions and five with trials scheduled in 2022. Of the 140 cases, nine have gone to trial.

The following chart tracks the number of active cases from the original 140 that were still active in six month increments. Note that this is somewhat subjective and is based on what appears to be resolution on the merits rather than the actual closing of the file. For example, when settlements are reached, often an uncontested motion and court decision is required to grant or dismiss the proceeding, or return security for costs that may have been paid into court. This analysis only includes cases from Canada’s Federal Court where most patent cases take place in Canada but does not include cases brought under the Patented Medicines regime.

The Federal Court issued about 53 reported decisions relating to these 140 patent proceedings but these reported decisions only involved 25 proceedings and most of the proceedings had no reported decisions. One proceeding, Seedlings Life Science Ventures v. Pfizer Canada (T-608-17) has five reported decisions.

As noted above, of the original 140 proceedings started in the three year period under review, nine have gone to trial (see my list of IP trials) and five others are scheduled for trial in 2022 (see my list of scheduled trials). For the cases that have gone to trial, the average time to trial ranged from between 29 months to 45 months although as noted above a number of cases are still ongoing and have not yet gone to trial. One of the scheduled trials for 2022 would start about 64 months from the issuance of the Statement of Claim. Because of the pandemic, I am only aware of three patent trials that were started in the Federal Court between mid-March and the end of August 2020 which may have extended the time to trial for some proceedings.

The five trial decisions that have been rendered are all under appeal. The patentee has been successful on liability in one of the cases, with the Court finding no infringement in four proceedings and the patents invalid in two cases. In addition to the five proceedings with a trial decision, there are four proceedings where the trial has concluded and the trial decision is currently under reserve.

• Deeproot Green Infrastructure, LLC v. Greenblue Urban North America Inc., 2021 FC 501 (under appeal A-181-21)
• Betser-Zilevitch v. Petrochina Canada Ltd., 2021 FC 85 (under appeal A-57-21)
• dTechs EPM Ltd. v. British Columbia Hydro and Power Authority, 2021 FC 190 (under appeal A-121-21)
• Guest Tek Interactive Entertainment Ltd. v. Nomadix, Inc., 2021 FC 276 (under appeal A-112-21)
• Seedlings Life Science Ventures, LLC v. Pfizer Canada ULC, 2020 FC 1 affirmed 2021 FCA 154
• Paid Search Engine Tools, LLC v. Google Canada Corporation (T-40-18), under reserve
• Rovi Guides, Inc. v Videotron Ltd. (T-921-17), under reserve
• Rovi Guides Inc at al v. BCE Inc. et al (T-113-18), under reserve
• Rovi Guides, Inc. et al v. Telus Corporation et al (T-206-18), under reserve

In addition, there have been three summary judgment decisions on the merits, all finding non-infringement of the asserted patent in favour of the defendant.

This data confirms that most patent proceedings settle or are resolved well before trial. Of the 140 patent infringement proceedings started in 2017, 2018 and 2019, most have ended through discontinuance or settlement. I expect that many of the cases that are still ‘active’ will be resolved in a similar manner rather than go to trial. The Federal Court has indicated a goal to get cases to trial in about two to three years through case management and making judges and prothonotaries available, and while this has happened in some patent cases, it appears that many proceedings that do go to trial take longer.

In a future column, I will look at what happens prior to trial and typical pre-trial schedules.