Late Pleadings Amendments Allowed, but with Solicitor and Client Costs on the Merits of Addressing Them (Intellectual Property Weekly Abstracts Bulletin – Week of August 10)

Patent Infringement Actions

Late Pleadings Amendments Allowed, but with Solicitor and Client Costs on the Merits of Addressing Them Arctic Cat Inc. v. Bombardier Recreational Products Inc., 2015 FC 938

Bombardier brought a motion for leave to amend its Statement of Defence and Counterclaim to expand the list of prior art and include a new ground of invalidity (ambiguity). There were three months left before trial, a pre-trial conference had been held and the parties had exchanged their expert reports in chief. The Court granted the motion with respect to the prior art, but not with respect to the new allegation. However, the Court also ordered solicitor and client costs not only on the motion, but for all costs reasonably incurred by Arctic Cat to consider and react to the amendments, in any event of the cause.

The proposed new prior art references were known to Bombardier, and disclosed to Arctic Cat in the context of US proceedings, however they were not part of this case until Bombardier delivered its expert report. The pre-trial conference was held the day before expert reports were due, but no...