Supreme Court of Canada: Intellectual Property Appeals

The following intellectual property cases are active before the Supreme Court of Canada. This list is automatically generated daily. Please contact me if you notice any errors or inconsistencies.

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[Listing generated on September 30, 2022]

Proceedings waiting for rulings

The following intellectual property appeals are awaiting judgment from the Supreme Court of Canada.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision
39439 Heard 2022-04-20 Nova Chemicals Corporation v. The Dow Chemical Company, et al. A-150-17 2020 FCA 141: Before the Court is an appeal and a cross-appeal from the judgment of the Federal Court in file T-2051-10 (per Fothergill J.): 2017 FC 350, supplementary reasons 2017 FC 637, reasons on costs 2017 FC 759. … Broadly speaking, the appeal and the cross-appeal in this Court concern the principles that should govern the calculation of a plaintiff’s recovery under an accounting of profits. This issue arises from an earlier judgment of the Federal Court, later affirmed on appeal: 2014 FC 844, aff’d 2016 FCA 216. … The jurisprudence has developed two rules for courts to help them implement these principles: (1) only actual profits, meaning actual revenues minus actual costs, are disgorged; (2) only profits that have resulted from the patent infringement are disgorged. … Thus, for the foregoing reasons, in the accounting of profits context, the use of the term “non-infringing baseline” is preferable to “non-infringing alternative”. Using the term “non-infringing baseline” steers courts and litigants away from impermissible “but for” reasoning. … In my view, absent some exceptional or compelling circumstance or persuasive expert evidence to the contrary in a particular case, the full cost method is the appropriate approach to deducting costs in an accounting of profits. … Dissent: For the reasons below, I have concluded that an apportionment of profits is appropriate in this case. I also conclude that the Federal Court made a reviewable error by not considering the issue of “causation”, which is at the heart of the legal test of apportionment.

Application for leave

Applications for leave to appeal have been filed on the following intellectual property related proceedings.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision
40354 Application for leave filed 2022-09-15 Licensing IP International S.À.R.L., et al. v. Sweet Productions Inc., et al. A-100-21 2022 FCA 111: This is an appeal from the judgment of the Federal Court (per Justice Zinn) dated March 10, 2021, allowing an appeal of Prothonotary’s Steele’s Order dated October 16, 2020, and dismissing the underlying action brought by the appellants for copyright infringement in respect of cinematographic works appearing on the respondents’ “Pornhub websites”. The main issue on this appeal (and before the Federal Court) relates to the proper remedy when undue delay has been found pursuant to Rule 167 of the Federal Courts Rules. More specifically, should the Court start with the presumption of dismissal if undue delay is found, as determined by the Federal Court, or is the Court’s discretion unfettered and dismissal only to be used as a remedy of last resort? … Accordingly, I would allow the appeal in part, set aside the Federal Court’s judgment in relation to Rule 167, and reinstate the Prothonotary’s Order that the underlying action proceed as a specially managed proceeding.

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Canadian Intellectual Property