Abbvie Corporation v. Janssen Inc., 2013 FC 1148

This patent infringement action started in 2009. The Parties are due to start the trial at the beginning of December. By this motion, Janssen sought to amend its pleadings to include additional pieces of prior art brought to its attention by its expert witness. The Court refused to allow the amendments.

The Court held that the question is not simply whether an expert can address the new art. The Court held  that at this time, a party has shaped its case, selected the issues to address, and picked the experts needed to address those issues. These are not trivial or formalistic amendments, and go to the heart of one of the major invalidity issues. The prior art “is not a simple truth; it is an assertion as to what might have been.” The Court held that the trial cannot simply be put off by a few weeks in order to allow time to deal with these new issues. Thus, the amendments were not allowed.