Eli Lilly appealed two interlocutory decisions made by the Case Management Prothonotary. Both appeals were dismissed. The first appeal challenged the decision of the Prothonotary to allow Novopharm to amend its Statement of Claim. By the amendment, Novopharm was permitted to plead additional prior art in support of its anticipation allegation. The Court agreed with the Prothonotary that the new evidence was potentially significant and dismissed the appeal thereby allowing the amendment.

The second appeal was on Eli Lilly’s motion for production of a prior art search conducted by one of Novopharm’s expert witnesses. The Prothonotary denied Eli Lilly’s motion. The Court agreed with the Prothonotary and held that the motion was attempting a form of discovery of an expert which is not available under the Federal Court Rules. The Court also referred to a case where Justice Hughes held that the decision of a Prothonotary on the scope of discovery in a particular case should not be disturbed unless a clear error as to law or as to the facts has been made, or the matter is vital to an issue for trial.

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