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Although the United States is no doubt a fertile ground for patent litigation—with approximately 4,000 patent lawsuits filed in its courts each year—patent owners are increasingly looking outside of its borders to enforce their patent rights. This shift is due, in part, to the recent issuance of various United States Supreme Court decisions that have made the enforcement of patent rights more difficult. When looking abroad, Canada is often considered a possible venue due to its proximity to the United States and the relative cost-effectiveness of its proceedings.
In considering whether to litigate in
Canada, it is important for patent owners to understand the differences in
litigating between the two countries. Here, we review the top 10 ways in which
patent litigation in Canada differs from the United States.
1. No forum shopping
In Canada, almost all patent infringement actions are brought in the Federal Court, a specialized court of national jurisdiction. While the Federal Court has concurrent jurisdiction with provincial courts over matters of infringement, the Federal Court has exclusive jurisdiction to hear patent impeachment proceedings. As a result, there is virtually no time spent on disputes over forum or jurisdictional shopping issues in Canada.
2. Limited discovery
The discovery process in Canada is not as
invasive as it typically is in the United States. Oral examinations for
discovery in Canada (known as depositions in the United States) are generally
limited to one representative per party. Third parties or other fact witnesses
are rarely examined. Further, the rules generally do not allow experts to be
examined as part of the discovery process. Similarly, documentary discovery in
Canada is generally not as probing as it is in the United States.
3. No Mar… Read More
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