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Intellectual property litigation in the Federal Courts

Author(s): Lillian Wallace

Apr 7, 2020

For further information on the changes below or other intellectual property matters, please contact Lillian Wallace or any member of our Intellectual Property or Intellectual Property Litigation Groups.

As previously reported, in response to COVID-19, the Federal Court and the Federal Court of Appeal temporarily suspended certain deadlines and hearings between March 16 and April 17, 2020.  Both Courts have now extended the suspension period to May 15, 2020.  Notwithstanding the further extension, additional measures have been taken to hear matters during the suspension period.

The Federal Court

In addition to urgent or exceptional matters, the Federal Court will now hear, by telephone or videoconference, certain case management hearings as well as matters requested by parties on consent.  The Federal Court will continue to adjudicate motions in writing.

For case managed matters, the Court will continue to manage the matter and issue orders/directions provided that at least one of the following conditions are met: the matter is (1) urgent; (2) subject to a fixed trial/hearing date; (3) subject to a statutory deadline; or (4) all parties consent to the matter advancing during the suspension period.  Accordingly, actions under the Patented Medicines (Notice of Compliance) Regulations would continue to be case managed, among others.

If, by May 1, 2020, the suspension period has not been extended beyond May 15, 2020, the Federal Court is asking parties to provide their mutual dates of non-availability up to December 18, 2020, for the rescheduling of hearings that have been adjourned, or may be adjourned. There will be no two-week period of reduced summer sittings this year.

The Federal Court has also issued further guidance on procedural matters such as filing confidential documents and commissioning affidavits. More information is available on the Federal Court’s website:

The Federal Court of Appeal

For any appeal or judicial review application that was ready to be heard by March 13, 2020, the Federal Court of Appeal will now accommodate requests on consent to have these matters heard remotely.  Parties are also able to have matters disposed of on the basis of the record and their memorandums of fact and law.

The Federal Court of Appeal will continue to hear urgent matters remotely.

More information is available on the Federal Court of Appeal’s website:

Further information

Our Osler IP team remains fully operational and committed to providing our clients with continued exceptional service during this difficult time, including in relation to intellectual property litigation and obtaining, maintaining and protecting IP rights.  Please feel free to reach out to any member of our IP team with any questions or for more information.

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