Earlier decisions on infringement and validity
Quantification of award


The Federal Court has issued its further judgment and reasons (2017 FC 637) concerning the amount of financial compensation to be paid to Dow Chemical Company as a result of earlier patent infringement and validity proceedings against NOVA Chemicals Corporation (for further details please see "Dow succeeds on major issues in patent infringement profits case").

The final award totals over C$645 million (including pre-judgment interest), which is the largest reported award in a Canadian patent infringement case.

Earlier decisions on infringement and validity

The proceedings before the Federal Court were commenced in 2010. During the liability phase, the Federal Court upheld the validity of Dow's Canadian Patent 2,160,705 and found that NOVA's SURPASS polymers infringed (for further details please see "Dow prevails over NOVA in polymer patent suit"). The polymers are polyethylene compositions used in packaging applications, including heavy-duty bags, pallet wrapping and food packaging. Dow sells such compositions under the name ELITE.

As a result of the findings of infringement, the Federal Court awarded Dow various remedies, including:

  • an election between damages and an accounting of profits;
  • reasonable compensation for infringement that occurred between the publication date of Patent '705 and its date of issuance;
  • interest; and
  • costs.

Dow subsequently elected for an accounting of NOVA's profits.

On September 6 2016 the Federal Court of Appeal upheld the Federal Court decision on the merits (2016 FCA 216). On April 20 2017 NOVA's application for leave to appeal to the Supreme Court was dismissed.

Quantification of award

Justice Fothergill's initial reference judgment of April 7 2017 (public reasons released April 19 2017) decided a number of issues, including:

  • the profits arising from the springboard into the market that NOVA had enjoyed as a result of its infringement of Patent '705 Patent; and
  • the appropriate date of conversion of NOVA's profits into Canadian dollars.

Based on Fothergill's initial judgment, the parties had exchanged calculations of damages and profits payable by NOVA to Dow and provided the court with a list of three further issues relating to the appropriate accounting methodologies to apply to arrive at the final judgment. Subsequently, the parties made written submissions to the court on these issues on June 7 and June 14 2017. Dow was ultimately successful on two of the three issues.

NOVA has filed an appeal of Fothergill's initial decision.

For further information on this topic please contact Daniel Hnatchuk at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at