A $644 million lesson

August 2017

A $644 million lesson

Richard S. Levy
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514.878.3214

A record-breaking amount of $644 million, awarded on June 7th by the Federal Court of Canada to Dow Chemical against Nova Chemicals for patent infringement, is a vivid reminder of the importance of obtaining intellectual property protection and of conducting appropriate “right to manufacture” searches before any marketing activity. 

The enormity of the award is partly due to the fact that it covers sales by Nova which occurred before and after (as well as during) the patent term. The plaintiff, Dow, was awarded royalties on sales which occurred after the date of publication of the application until the date of patent issuance. Dow was also awarded an accounting for Nova’s profits for 20 months after the expiry date of the patent. This was to compensate Dow for the “springboard” benefit which Nova obtained from the infringement.

Although none of this is new, the added amounts are quite dramatic, making it an even more valuable lesson for all.

Hopefully you will be among those who will learn from it.

 

*To learn more about this decision, please read our previous article "The Federal Court clears the underbrush on accounting for profits: before, during and after the patent term".

 

This bulletin provides general comments on recent developments in the law. It does not constitute and should not be viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

 

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