Background: The plaintiffs, Boehringer Ingelheim (BI), filed a motion to include a reply report by Dr. Roland Bodmeier. This was part of a patent infringement action involving Canadian Patent No. 2,726,267 (the 267 Patent), which relates to nintedanib esilate, an ingredient in their OFEV® formulation. The defendant, Jamp Pharma Corporation (JAMP), filed an opposing expert report by Dr. Rampurna Prasad Gullapalli, which challenged BI’s infringement claims.

Legal Principles: The court considered the admissibility of reply evidence based on the principles established in Merck-Frosst v Canada (Health). These include whether the proposed evidence is:

• Properly responsive to the opposing party’s evidence,
• Not merely repetitive,
• Relevant and helpful to the court in resolving issues.

Analysis and Decision:

• Substitution of Lecithin with Other Surfactants: The court partially accepted paragraphs from Dr. Bodmeier’s reply that responded directly to Dr. Gullapalli's specific objections and arguments. Several paragraphs were excluded as they were not directly responsive or were confirmatory.

• Similar Function of PG3D to Lecithin: The court admitted paragraphs addressing the chemical and physical structure and HLB values of PG3D and lecithin, as well as certain points on charge/polarity. However, other sections were excluded as they reiterated previous evidence.

• Hauss Textbook and Approved Drug Products: The court excluded some responses to the Hauss textbook reference, as they lacked substance. It admitted comments regarding PG3D’s use in approved products because they directly countered Gullapalli’s assertion.

Conclusion: The court allowed portions of Dr. Bodmeier's reply evidence that clarified or countered specific claims by Dr. Gullapalli, while excluding sections that were repetitive or irrelevant. No costs were awarded.