Summary

Keywords

Intellectual property - Patents, Medicines, Damages - Intellectual property – Patents – Medicines – Damages - Respondent seeking remedy of accounting of profits following determination applicant had infringed respondent’s patent - What is the proper conceptual approach to determining how to calculate a disgorgement of profits in the patent context? - Are “springboard profits” on products sold after patent expiry available at law?

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Summary

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(SEALING ORDER)

The respondents, Dow Chemical Company et al. (“Dow”), held a patent for fabricated products made from ethylene polymer blends. Dow sued the appellant, Nova Chemicals Corporation (“Nova”), a manufacturer of a similar product, for patent infringement.

In 2014, the Federal Court, in the liability phase of the trial, held that Dow’s patent was valid and was infringed by Nova’s product. The patent was issued in 2006 and expired on April 19, 2014. Dow was held to be entitled to damages under the Patent Act, R.S.C. 1985, c. P-4, and had to elect either an accounting of Nova’s profits or damages sustained by reason of Nova’s infringement under s. 55(1) of the Act. The quantum of that award was to be assessed by reference. Dow elected an accounting of profits. The reference judge was required to determine the manner in which damages payable to Dow pursuant to ss. 55(1) and 55(2) of the Act should be calculated. The principles articulated by the reference judge allowed for the calculation of the accounting of profits to be disgorged by Nova and made payable to Dow. That decision was upheld by the Federal Court of Appeal.