On September 7, 2016, the Court held that Bayer's patent was valid and infringed (2016 FC 1013; our summary here). The parties were given an opportunity to make written submissions regarding Bayer's entitlement to elect between damages and an accounting of profits.
Apotex submitted that it should be entitled to make the election, and that Bayer should be restricted to an accounting of profits. The Court disagreed finding that the award of an equitable remedy, such as an accounting of profits, is at the Court's discretion, subject to the principles governing its availability. The Court noted that an unsuccessful defendant cannot invoke the Court's equitable jurisdiction to shield itself from an award of damages. Rather, at most, an unsuccessful defendant may oppose the grant of an equitable remedy based on considerations that have been recognized in the jurisprudence.
Bayer was entitled to damages and the parties agreed that an accounting of profits may also be an appropriate remedy. Therefore, the Court held that Bayer may elect between damages and an accounting of profits following discovery.