Case information
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37274
Nova Chemicals Corporation v. Dow Chemical Company, et al.
(Federal) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2017-04-25 | Close file on Leave | |
| 2017-04-21 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2017-04-21 | Judgment on leave sent to the parties | |
| 2017-04-20 |
Judgment of the Court on the application for leave to appeal, The motion to hold the application for leave to appeal in abeyance is dismissed with costs. The application for leave to appeal from the judgment of the Federal Court of Appeal, Number A-379-14, 2016 FCA 216, dated September 6, 2016, is dismissed with costs. Dismissed, with costs |
|
| 2017-04-20 |
Decision on the miscellaneous motion Dismissed, with costs |
|
| 2017-04-12 | Submission of miscellaneous motion, for consideration by the Court | |
| 2017-04-10 | Reply to miscellaneous motion, (Book Form), Completed on: 2017-04-10 | Nova Chemicals Corporation |
| 2017-04-03 | Response to miscellaneous motion, (Book Form), Completed on: 2017-04-03, (Printed version filed on 2017-04-05) | Dow Chemical Company |
| 2017-03-24 | Notice of miscellaneous motion, (Book Form), To be held in abeyance (Sent to the Court on 2017-04-12), Completed on: 2017-03-24 | Nova Chemicals Corporation |
| 2017-03-13 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2017-01-30 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2017-01-30 | Nova Chemicals Corporation |
| 2017-01-20 | Certificate (on limitations to public access), 23B | Dow Chemical Company |
| 2017-01-20 | Certificate (on limitations to public access), 23A | Dow Chemical Company |
| 2017-01-20 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2017-01-20 | Dow Chemical Company |
| 2016-11-25 | Order on motion to extend time, By the Registrar | |
| 2016-11-25 |
Decision on motion to extend time, Reg, UPON APPLICATION by the respondent for an order granting an extension of time to serve and file their response to January 20, 2017; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2016-11-25 | Submission of motion to extend time, Reg | |
| 2016-11-24 | Reply to motion to extend time, (Letter Form), (from Mr. Kevin K. Graham - WIll not file a reply), Completed on: 2016-11-24 | Dow Chemical Company |
| 2016-11-21 | Response to motion to extend time, (Letter Form), (by fax, from Marie-France Major), Completed on: 2016-11-21 | Nova Chemicals Corporation |
| 2016-11-17 | Certificate (on limitations to public access) | Dow Chemical Company |
| 2016-11-17 | Notice of name | Dow Chemical Company |
| 2016-11-17 | Motion to extend time, (Book Form), (2 volumes), To serve and file the response, Completed on: 2016-11-17 | Dow Chemical Company |
| 2016-11-08 | Letter acknowledging receipt of a complete application for leave to appeal, File opened on 2016-11-08 | |
| 2016-11-07 | Certificate (on limitations to public access) | Nova Chemicals Corporation |
| 2016-11-07 | Notice of name | Nova Chemicals Corporation |
| 2016-11-07 | Application for leave to appeal, (Book Form), (3 volumes), Completed on: 2016-11-07 | Nova Chemicals Corporation |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Nova Chemicals Corporation | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Dow Chemical Company | Respondent | Active |
| Dow Global Technologies Inc. and Dow Chemicals Canada ULC | Respondent | Active |
Counsel
Party: Nova Chemicals Corporation
Counsel
Nicole Mantini
Suite 3000, 79 Wellington Street West
P.O. Box 270, Toronto Dominion Centre
Toronto, Ontario
M5K 1N2
Telephone: (416) 865-7319
FAX: (416) 865-7380
Email: sblock@torys.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Dow Chemical Company
Counsel
Colin B. Ingram
Kevin K. Graham
Suite 900
55 Metcalfe Street
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: jwwant@smart-biggar.ca
Agent
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Dow Global Technologies Inc. and Dow Chemicals Canada ULC
Counsel
Suite 900
55 Metcalfe Street
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: jwwant@smart-biggar.ca
Agent
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Intellectual property – Patents – Validity – Infringement – Respondents seeking damages or accounting of profits for infringement of its ‘705 Patent – Is the Federal Court of Appeal permitted to defer to the trial judge’s conclusions on patent construction, or is it required to consider the issue anew, as a matter of law on the basis of a correctness standard? – Can the construction of a patent be determined by the trial judge’s adoption of the extrinsic opinions of experts, rather than by the court, considering and interpreting the intrinsic language and teachings of the patent itself, as a question of law?
Nova and the respondents (collectively, “Dow”) are both manufacturers of polymer compositions products such as garbage bags and food wrap and are competitors in the market. Dow sells polyethylene film-grade copolymers under the name “Elite” in Canada. Nova manufactures and sells polyethylene film-grade copolymers under the name “Surpass”. Dow is the owner of the ‘705 Patent for polyethylene compositions and the films made from such compositions. These compositions are blends of two different polymer components referred to as Component “A” and Component “B”. Dow sought a declaration that Nova had infringed its ‘705 Patent and damages or an accounting of profits for the infringement.
Lower court rulings
Federal Court
T-2051-10, 2014 FC 844
Order that claims of Dow’s ‘705 patent were valid and infringed by Nova. Dow entitled to elect between accounting of profits or damages.
Federal Court of Appeal
A-379-14, 2016 FCA 216
Applicant’s appeal dismissed.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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