Supreme Court Of Canada Affirms Record-setting $645M Patent Infringement Award In Dow v Nova

• Published date: 22 November 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Smart & Biggar
• Author: Mr Daniel Davies

In an 8-1 majority ruling released today, the Supreme Court of Canada (SCC) has affirmed the record-setting $645M patent infringement award in Dow v Nova.

The Supreme Court dismissed Nova's appeal of the earlier decisions of the Federal Court (2017 FC 350 and 2017 FC 637), and Federal Court of Appeal (2020 FCA 141), wherein Nova Chemicals Corporation (Nova) was ordered to pay The Dow Chemical Company (Dow) approximately $645 million as a result of Nova's infringement of Dow's patent on novel polyethylene blends (2014 FC 844). As reported previously, this was and remains the largest reported Canadian patent infringement award in history.

Broadly speaking, the Supreme Court's majority decision (2022 SCC 43) addresses the principles that should govern the calculation of a plaintiff's recovery under the accounting of profits remedy. The decision covers various aspects of the remedy, including the "differential profits" calculation approach, and the availability of springboard profits to account for an infringer's increased profits following patent expiry.

Dow was represented by Smart & Biggar with Steven Garland, Jeremy Want, Daniel Davies, Matthew Burt and Nicole Boyle acting as counsel.

Earlier decisions on infringement and validity

During the liability phase, which began in 2010, the Federal Court upheld the validity of Dow's Canadian Patent No. 2,160,705 and found that Nova's SURPASS polymers infringed the patent. Polymers are polyethylene compositions used in packaging applications including heavy-duty bags, pallet wrapping and food packaging. Dow...