In this decision on costs, the Court award costs calculated at the top of column IV of Tariff B to the Plaintiff for its successful impeachment action.
The Court considered the factors listed under Rule 400(3). The Court had serious concerns on three issues, including the manner in which the Defendant dealt with one of its expert's testimony. According to the Court, it appeared likely that the Defendant and/or its counsel was aware before trial that it had no reliable expert evidence to defend against the Plaintiff's central issue in the case. Furthermore, the Court noted that the Defendant failed to address the situation in any way during trial, either in re-direct or in argument. The Court was also concerned about the Defendant's position on the Patent's construction, which was contrary to the position it took during prosecution of the patent application. While these grounds justified elevated costs, the Court was not convinced that the Defendant's conduct had been so reprehensible as to justify a lump sum award of costs.