No Good, Just The Bad And The Ugly – Punitive Damages For Patent Infringement In Canada

Punitive damages are the exception rather than the rule for patent infringers in Canada, even in the case of a defendant that knows it is most likely infringing the patent1. This article provides a brief overview of the availability of punitive damages in Canada for patent infringement. See our earlier article regarding punitive damages for breach of contract.

Background on Patent Litigation and Remedies

Canada does not have a specialized patent court. Most patent lawsuits are brought by way of action in the Federal Court of Canada.

An infringer is liable to pay reasonable compensation for its activities before patent grant2. After patent grant, the infringer is liable for either damages or an accounting of profits (ie. disgorgement of infringer's profits). The accounting of profits is an unusual remedy in that the patent owner can take the infringer's profits arising from the infringement, regardless of whether the patent owners suffered any damages.

Punitive Damages

Punitive damages may be requested in Canadian patent cases...