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Huge damages award sign of more holistic approach to accounting of profits

Thursday, September 14, 2017 @ 9:16 AM | By Ephraim Stulberg

The recent award of over $644M following the damages reference in Dow Chemical Company v. Nova Chemicals Corporation, 2017 FC 350 is one of the largest awards for intellectual property infringement in Canadian history. The decision of Justice Fothergill contains many novel points of interest, but perhaps none so significant as his treatment of the issue of non-infringing alternatives and the deduction of fixed and capital costs in determining Nova’s profits to be disgorged to Dow.

The case involved Dow’s patent (the 705 patent) for the production...