Nova Chemicals Corporation v. The Dow Chemical Company, 2016 FCA 216

Justice de Montigny; Justice Webb; Justice Boivin - 2016-09-06

Read full decision. Summary prepared by Alan Macek:

This is an appeal from a decision (see 2014 FC 844) granting an action for patent infringement brought by The Dow Chemical Company against the Nova Chemicals Corporation in respect of its product SURPASS. The parties are both manufacturers of polyethylene film-grade copolymers for use in, amongst other things, packaging applications. The Dow Chemical Company is the owner of the '705 for “Fabricated Articles Made from Ethylene Polymer Blends”. Before the Federal Court of Appeal, Nova appeals all of the Judge’s findings regarding validity and also contests the construction of four terms in the ‘705 Patent, as well as the corresponding infringement findings, namely: 1) promise of synergistic utility; 2) obviousness; 3) broader than the invention made or disclosed; 4) SHC is determined using a load/elongation curve; 5) construction of "heterogeneously branched"; 6) construction of "comprising"; 7) that high density was at least 5% by weight. The court concluded, "For all of the foregoing reasons, I would dismiss the appeal with costs. All of the arguments raised by the appellant amount to no more than mere disagreements with the Judge’s factual findings and assessment of the expert evidence. The Judge did not err in law, and was entitled to prefer the evidence of some of the experts over that of others; indeed, this is precisely the task he was called upon to fulfil, and the appellant has not established that he made any palpable and overriding error in doing so." Dimock Stratton appeared for the Dow Chemical Company at trial and on appeal.

Decision relates to:


Canadian Intellectual Property