Court Awards $6.5 Million For Plaintiffs' Costs Following Successful Infringement Action (Intellectual Property Weekly Abstracts Bulletin — Week Of December 12)

PATENT DECISIONS

Court awards $6.5 million for plaintiffs' costs following successful infringement action

Dow Chemical Company v. Nova Chemicals Corporation, 2016 FC 91

The Court awarded the Plaintiffs a lump sum payment of $6.5 million for their costs in this case. The amount consisted of $2.9 million for legal fees and $3.6 million for the Plaintiffs' reasonable and necessary disbursements. In the underlying proceeding, the Plaintiffs were granted a declaration that the Defendant had infringed Canadian Patent No. 2,160,705 (2014 FC 844). There was no dispute that it was a most complex case with many complicated concepts and issues.

The Plaintiffs' submissions showed that Dow's actual total legal costs were $9.6 million. The submissions also stated that should the Plaintiffs' fees be assessed under Column V of Tariff B, their costs would only amount to $1,099,725, which was 11% of the Plaintiffs' total legal costs. The Court noted that costs pursuant to Column V of Tariff B would be totally inadequate in this case; it was not acceptable to only recoup 11% of one's costs in such a complex case.

After considering the submissions of both parties and the jurisprudence of this Court, the Court held that a lump sum award for costs was appropriate in this case. The Court found that the Plaintiffs' lump sum of $2.9 million for their costs for legal fees to be a reasonable amount. The Court was also satisfied that the disbursements were reasonable.

COPYRIGHT DECISIONS

Motion to amend Statement of Claim and motion for summary judgment allowed in part in copyright action

Davydiuk v. Internet Archive Canada and Internet Archive, 2016 FC 1313

In the within action for copyright infringement, the Plaintiff claims to be the owner of the copyright in certain cinematographic works and unfixed performances described in his original Statement of Claim. The Defendant, Internet Archive, is a California-based non-profit digital library that operates a service called the Wayback Machine, which preserves publicly available internet sites in a free, searchable archive. The Plaintiff had requested that certain webpages be removed or excluded from their archive. The Defendants advised him that the identified material had been taken down from their websites and removed from their collections. In 2011, the Plaintiff discovered that the Defendants were running a new version of one of its archiving websites with the works at issue and commenced this infringement action.

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