Janssen Inc. v. Teva Canada Limited

Janssen Inc. v. Teva Canada Limited

The proposed reply expert reports were largely inadmissible because they amounted to disagreement, rebuttal or affirmation of evidence already before the Court and therefore constituted improper case-splitting; those matters could be addressed by cross-examination and did not meet the narrow scope for reply evidence. However, additional prior art documents referenced in the proposed reply of Dr. Vromans may be added to Appendix B of the Amended Defence and Counterclaim for the limited purpose of cross-examination, as this does not prejudice the plaintiffs and aids a complete record.

Citation
2019 FC 1309
Parties
Plaintiff: Janssen Inc.; Plaintiff (defendant by Counterclaim): Janssen Pharmaceutica N.V.; Defendant (plaintiff by Counterclaim): Teva Canada Limited
Court
Federal Court
Jurisdiction
Canada
Judgment Date
18 October 2019
Procedural Posture
Patent Infringement (patented Medicines (notice of Compliance) Regulations S.6(1)) / Pre Trial Motion for Leave to Serve Reply Expert Reports
Outcome
Teva's motion to file reply evidence is dismissed; Teva's motion to amend Appendix B to add prior art referenced in Dr. Vromans' reply is allowed for a limited purpose.
Legal Topics
Expert Evidence, Reply Evidence, Case Splitting, Amendment of Pleadings, Discovery, Notice of Compliance
Source Language
English
Intellectual Property Patent Law Civil Procedure Expert Evidence Reply Evidence Case Splitting Amendment of Pleadings Discovery +1 more

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Parties

Janssen Inc.

Plaintiff

Janssen Pharmaceutica N.V.

Plaintiff (defendant by Counterclaim)

Teva Canada Limited

Defendant (plaintiff by Counterclaim)

Procedural Posture

Patent Infringement (patented Medicines (notice of Compliance) Regulations S.6(1)) / Pre Trial Motion for Leave to Serve Reply Expert Reports

Legal Issues

  1. 1 Whether Teva should be granted leave to serve and file reply expert reports
  2. 2 Whether Teva should be allowed to amend the Amended Defence and Counterclaim to add prior art referenced in proposed reply reports

Ratio Decidendi

The proposed reply expert reports were largely inadmissible because they amounted to disagreement, rebuttal or affirmation of evidence already before the Court and therefore constituted improper case-splitting; those matters could be addressed by cross-examination and did not meet the narrow scope for reply evidence. However, additional prior art documents referenced in the proposed reply of Dr. Vromans may be added to Appendix B of the Amended Defence and Counterclaim for the limited purpose of cross-examination, as this does not prejudice the plaintiffs and aids a complete record.

Court Disposition

Teva's motion to file reply evidence is dismissed; Teva's motion to amend Appendix B to add prior art referenced in Dr. Vromans' reply is allowed for a limited purpose.

Orders

  • Teva's motion to file reply evidence is dismissed.
  • Teva's motion to amend Appendix B to the Amended Defence and Counterclaim to add the prior art referenced in the Reply Expert Report of Dr. Herman Vromans is allowed for the limited purpose of cross-examination of any expert witness at trial, if deemed necessary by any party.