The Federal Court refused bifurcation of a patent proceeding into liability and quantification stages.
The defendant, British Columbia, moved for bifurcation asserting the case was complex given the number of patent claims at issue and the architecture of the alleged infringing system. The defendant pointed to several alleged temporal and substantive infringement issues and asserted bifurcation would save time and costs for the parties and the Court.
The motions judge held it was “impossible to fathom from the [defendant’s] record the magnitude of the potential savings” of time and expense by bifurcation. She dismissed the motion as the defendant had “not come close” to meeting the threshold of satisfying the Court the savings were enough to “outweigh the inherent inefficiencies of bifurcation.”
Justice McHaffie dismissed the defendant’s appeal. He held that although a moving party need not always precisely or exactly quantify the anticipated savings in time or cost, it continues to have the burden of demonstrating sufficient expected efficiencies to justify bifurcation. Examples the Judge highlighted include: (i) an approximation of the anticipated scope of documentary production and or length of discovery; (ii) estimates of savings in expert fees and time; (iii) the amount of time or resources a party will have to dedicate to documentary discovery; and (iv) the anticipated length of trial time dedicated to different issues. The judge noted that the evidence may be different in each case but the motion judges will assess whether that evidence satisfies that bifurcation is more likely than not to lead to the just, expeditious, and least expensive outcome of the proceeding.