Patent Litigation 2025

CANADA Law and Practice Contributed by: Mark Davis, Andrew Skodyn, Sean Jackson, Kassandra Shortt and Mackenzie Stewart, Cassels Brock & Blackwell LLP

9. Alternative Dispute Resolution 9.1 Type of Actions for Intellectual Property Most Canadian patent actions are resolved prior to trial. The Federal Court, in which most patent cases are commenced, has a dispute resolution process to help facilitate resolutions prior to trial. Any proceeding, or any issue in a proceeding, can be referred to a dispute resolution confer- ence. These conferences are conducted by a case management judge or an associate judge, who may: • conduct a mediation, to assist the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute; • conduct an early neutral evaluation of a proceeding, to evaluate the relative strengths and weaknesses of the positions advanced by the parties and render a non-binding opinion as to the probable outcome of the proceeding; or • conduct a mini-trial, presiding over presenta- tion by counsel for the parties of their best case and rendering a non-binding opinion as to the probable outcome of the proceeding. Discussions and documents prepared for dis- pute resolution conferences are confidential. The case management judge or associate judge who presides over the dispute resolution conference shall not preside over the trial unless all parties consent. Parties to a patent action may also resolve their disputes through negotiation or a formal media- tion. Mediations are usually conducted before a senior intellectual property practitioner or retired judge.

is much shorter than a trial. The duration of the appeal is set by the court and is usually one day or less.

8. Costs 8.1 Costs Before Filing a Lawsuit

Parties are not required to take any specific steps before starting an action for patent infringement. However, it is common for parties to send a demand letter and to analyse the potential pat- ent infringement to ensure there is a basis for proceeding to litigation. 8.2 Calculation of Court Fees There are modest fixed fees for commencing a proceeding. The Federal Court of Canada charg- es CAD150 for issuing a statement of claim and CAD50 for commencing a claim under simplified procedure (in cases where the monetary relief sought does not exceed CAD100,000). 8.3 Responsibility for Paying the Costs of Litigation While an award of legal fees is discretionary, Canadian courts almost always award the suc- cessful party a portion of their legal fees and all reasonable disbursements. When awarded, legal fees are assessed according to the court’s tariff, or as a lump sum that is typically 25–50% of the actual fees incurred. Courts generally consider various factors when assessing costs, including: • the amounts claimed and recovered; • the complexity of the action; • the work required; • the parties’ conduct; • settlement offers; and • any public interest in the outcome of the action.

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