On November 28, 2024, the Federal Court updated its guidelines for proceedings under the Patented Medicines (Notice of Compliance) Regulations (PMNOC Regulations) and other complex proceedings.  While the changes are not extensive, they create some new obligations and expectations that litigants should be aware of.  We summarize the most important changes here.

Background

Since 2020, the Federal Court has had consolidated Guidelines for PMNOC proceedings and other complex proceedings expected to require 5 or more days of trial (see our reports here and here). The Guidelines are intended to complement the Federal Courts Rules and streamline the litigation toward trial. The Guidelines were last amended in October 2023. 

For patent infringement actions brought under section 6 of the PMNOC Regulations, the Court also provides a Timetable Checklist. Parties use the Timetable Checklist to craft a jointly-proposed timetable for the action. The timetable is proposed to the case management judge, who issues a scheduling order acceptable to the Court.  

Updated Guidelines and Timetable Checklist

Notable updates to the Guidelines and the Timetable Checklist made on November 28, 2024 are:

  • Pre-trial conference:  The updated Guidelines require that counsel and party representatives attend a pre-trial conference in PMNOC proceedings. The pre-trial conference is “to address the possibility of settlement”, which all of the participants must be prepared to address: Federal Courts Rules, r. 263(a).  This is a new step in PMNOC proceedings: the previous Guidelines stated that no pre-trial conference shall be held. While the updated Guidelines state that the pre-trial conference will be “streamlined”, they do not indicate whether parties will be required to file memorandums, a potentially time-consuming step.
  • Target date to complete discovery:  The updated Guidelines set a new target date for completion of first-round discovery in PMNOC proceedings: no later than 6 months from the close of pleadings (typically the filing of a Reply by the Plaintiff).  It is unclear if the target date includes the time to hear any motions to compel answers and to provide any answers ordered by the Court.  If so, this could significantly compress the time to produce documents and carry out discovery examinations.   
  • Potential for longer discovery examinations:  The updated Guidelines expand the possibility of extending discovery examinations, which were previously capped based on the number of scheduled trial days (e.g., 2 days of discovery examination for trials scheduled for 6 to 10 days).  While the updated Guidelines retain these caps, they also state that “the duration of  discovery may also consider the volume of documentary evidence and complexity of the proceeding” and provide 8 factors to consider, including the number of patents and defences at issue as well as the number of documents produced.

Links