Lump Sum Costs Are the New Normal

Viiv Healthcare Company v Gilead Sciences Canada, Inc 2020 FC 486 Manson J
            2,606,282 / bictegravir / BIKTARVY

The costs tariff has been outdated for a while now, and we’ve seen a trend toward lump sum costs in complex patent cases. It seems the trend has now reached the point where lump sum costs are the new normal, at least in complex patent litigation:

[180] The parties agreed that costs should be awarded on a lump sum basis in line with recent complex patent cases in this Court (Dow Chemical Company v Nova Chemicals Corporation, 2016 FC 91, aff’d 2017 FCA 25; Sport Maska Inc v Bauer Hockey Ltd, 2019 FCA 204; Packers Plus Energy Services Inc v Essential Energy Services Ltd, 2020 FC 68). Gilead seeks 40% of its actual costs, and ViiV proposed lump sum costs in the range of 30-40% of its professional fees plus 100% of all reasonable disbursements, in line with the above cases.

[181] Given that these are sophisticated commercial parties engaged in complex patent litigation, a lump sum costs award is appropriate. That said, the summary trial was limited to construing three claims, with the issue of non-infringement flowing from the Court’s construction. In the circumstances, 30% of actual costs, plus reasonable disbursements, is appropriate.