Today, the Supreme Court issued its decision in Nova Chemicals Corp. v. Dow Chemical Co., 2022 SCC 43 regarding the quantification of an accounting of profits as a result of patent infringement. The majority dismissed the appeal with a focus on the ‘non-infringing option’: “a non-infringing option helps courts isolate the profits causally attributable to the invention from the profits which arose at the same time the infringing product was used or sold, but which are not causally attributable to the invention.” The majority also upheld springboard profits, saying, “a portion of such post-expiry profits may be causally attributable to infringement of the invention.” Continue reading Supreme Court
Tag Archives: Remedies
Reasonable Royalties and Non-Infringing Alternatives
In a decision released earlier this year, Frac Shack Inc. v. AFD Petroleum Ltd., 2017 FC 104, the defendant was found to infringe several of the claims in a patent relating to a fuel delivery system used for hot refuelling equipment used for hydraulic fracturing. The court ordered a 27% royalty rate for sales made prior to the grant of the patent at issue and did not consider a manual process as being a non-infringing alternative. My article on this decision was published by Slaw. Continue reading Reasonable Royalties and Non-Infringing Alternatives
The United States Supreme Court has granted cert in Apple v. Samsung on the question of the apportionment of the infringers profits for design infringement.