The Court of Appeal dealt with two appeals and cross-appeals arising from the decision of the Federal Court dealing with the total amount of profits to be disgorged by the infringers. The defendants had admitted infringement. Monsanto then elected an accounting of profits as its remedy and the trial was held on that basis.

The Trial Judge held that the accounting of profits remedy was to be determined by looking at the difference between the profits made using the infringing option and what would have been made if the infringers used a non-infringing option. The Court of Appeal held that this was the correct approach. Monsanto did not invent soya beans. Thus, the differential profit approach can properly give Monsanto the portion of the appellant’s profits which exceeds the profit differential expected if conventional soya beans were used. Monsanto’s cross-appeal was dismissed.

The Court then considered the actual percentage of profits to be awarded and found that the judge had erred by not following Monsanto’s own unchallenged evidence. Thus, the percentage of the profits awarded to Monsanto was reduced to accord with the numbers in its own chart.