T-Rex Property AB v. Pattison Outdoor Advertising Limited Partnership

T-Rex Property AB v. Pattison Outdoor Advertising Limited Partnership

The portions of the Reply Expert Report (paragraphs 11 and 98–171) constituted new substantive evidence and methodology addressing representativeness of source code that should have been included in T‑Rex's case-in-chief and therefore amounted to impermissible case-splitting; the reply report did not qualify as proper reply and was inadmissible, so the Reply Report is excluded and will not be filed in evidence.

Citation
2022 FC 1008
Parties
Plaintiff/defendant by Counterclaim: T-REX PROPERTY AB; Defendant/plaintiff by Counterclaim: PATTISON OUTDOOR ADVERTISING LIMITED PARTNERSHIP; Defendant/plaintiff by Counterclaim: PATTISON OUTDOOR ADVERTISING LTD; Defendant/plaintiff by Counterclaim: JIM PATTISON INDUSTRIES LTD; Defendant/plaintiff by Counterclaim: ONESTOP MEDIA GROUP INC
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 July 2022
Procedural Posture
Patent Infringement and Validity (canadian Patent No. 2,252,973) / Pre Trial Motion to Exclude Reply Expert Evidence (trial Scheduled to Resume)
Outcome
Motion granted in part; Reply Report excluded and not filed in evidence; costs awarded to defendants/plaintiffs by counterclaim
Legal Topics
Admissibility of Expert Evidence, Reply Expert Reports, Case Splitting, Source Code Representativeness, Costs
Source Language
English
Patent Law Evidence Civil Procedure Admissibility of Expert Evidence Reply Expert Reports Case Splitting Source Code Representativeness Costs

Case Brief

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Parties

T-REX PROPERTY AB

Plaintiff/defendant by Counterclaim

PATTISON OUTDOOR ADVERTISING LIMITED PARTNERSHIP

Defendant/plaintiff by Counterclaim

PATTISON OUTDOOR ADVERTISING LTD

Defendant/plaintiff by Counterclaim

JIM PATTISON INDUSTRIES LTD

Defendant/plaintiff by Counterclaim

ONESTOP MEDIA GROUP INC

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement and Validity (canadian Patent No. 2,252,973) / Pre Trial Motion to Exclude Reply Expert Evidence (trial Scheduled to Resume)

Legal Issues

  1. 1 Whether portions of a reply expert report constitute proper reply evidence or impermissible case-splitting
  2. 2 Whether expert evidence addressing representativeness of source code versions could have been raised in chief
  3. 3 Whether the trial judge should exercise discretion to admit otherwise inadmissible reply evidence

Ratio Decidendi

The portions of the Reply Expert Report (paragraphs 11 and 98–171) constituted new substantive evidence and methodology addressing representativeness of source code that should have been included in T‑Rex's case-in-chief and therefore amounted to impermissible case-splitting; the reply report did not qualify as proper reply and was inadmissible, so the Reply Report is excluded and will not be filed in evidence.

Court Disposition

Motion granted in part; Reply Report excluded and not filed in evidence; costs awarded to defendants/plaintiffs by counterclaim

Orders

  • Paragraphs 11 and 98 to 171 of the Reply Expert Report of Zaydoon Jawadi dated December 17, 2021 are inadmissible and excluded from evidence
  • Because the remaining paragraphs of the Reply Report had been withdrawn by T-Rex, the entire Reply Report will not be filed in evidence