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Spotlight on patent infringement damages

Thursday, September 17, 2015 @ 8:00 PM | By Mark Gain and Ephraim Stulberg

The Federal Court of Appeal has issued a ruling that could have wide-ranging consequences for the calculation of patent infringement damages. In Apotex Inc. v. Merck & Co. [2015] F.C.J. No. 900, the appeal court rejected the trial judge’s ruling (in [2013] F.C.J. No. 840) that in quantifying a plaintiff’s damages, one does not consider whether the defendant could have made use of non-infringing alternative technologies (NIAs).

However, the FCA’s decision also contains some important caveats. In considering NIAs, one must consider what the defendant could...