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Intellectual Property Weekly Abstracts Bulletin — Week Of September 26

Patent Decisions

Motion Relating to Discovery Read-ins

Mediatube Corp. v. Bell Canada, 2016 FC 1066

In a patent infringement action, the defendant brought a motion relating to read-ins of portions of the examinations for discovery. In particular, the defendant sought an order requiring the plaintiffs to read in corrections that were made to the initial discovery evidence. The Court noted that its ability to qualify answers is restricted but found that it was proper in this case to ensure that the read-ins did not misrepresent what the defendant ultimately answered. It was agreed that the defendant has the right to correct its answers, and thus this right must also include the right to replace its original answer. The Court noted that the Trial Judge will consider the weight to be given to the evidence in any event.

The Court also confirmed that a refusal to answer is not an answer that can be read in but in some cases, the alleged refusals were not complete refusals and any answers provided could be read in. With respect to the plaintiffs' submissions that refusals could be read in as relevant to costs, the proper recourse if the defendant believed that a refusal was improperly given was to bring a motion to compel the answer. In the absence of such motion, there are no cost consequences to a proper refusal. Finally, the Court noted that the defendant argued that any documents included by the plaintiffs with their read-ins cannot be relied upon for the truth of their contents, only for clarification of the answer, and the plaintiffs agreed to the extent that the content of the document is inadmissible hearsay.

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