Non-Infringing Alternative

April 3, 2018

Non-Infringing Alternative Defence Denied in Omeprazole Infringement Profit Case

2017 FC 726 - The FC held that Apotex did not satisfy the factual burden required to establish a hypothetically viable non-infringing substitute during the period of infringement, which could reduce the infringement profits owed to AstraZeneca.
May 16, 2017

Dow Awarded an Accounting of Profits including Springboard Profits from Infringer’s Ramped-up Sales

2017 FC 350 - The Federal Court outlined in this decision how the Dow Chemical Company should be compensated by Nova Chemicals Corporation for its infringement of Dow’s patent.
April 4, 2017

FCA holds FC erred by rejecting relevance of non-infringing alternatives

2017 FCA 23 - The FCA found that the FC had erred by rejecting the relevance of non-infringing alternatives available to Apotex, so as to reduce the accounting of profits award to ADIR for infringement of its patent. The single issue was remitted back to the FC.
February 10, 2016

FCA Endorses Non-Infringing Alternatives as a Relevant to Patent Damages

2015 FCA 171 - The FCA determined that it is relevant to damages whether the infringer had a non-infringing alternative that it could have used.
September 8, 2015

Federal Court Revisits Schmeiser Differential Method for Calculating Profits

ADIR v Apotex Inc, 2015 FC 721 - In an accounting of profits case, the FC stated that if a non-infringing alternative is to be considered, it “cannot be what one would have done had one complied with the law”.
July 22, 2013

FC Rules Non-Infringing-Alternative Defence Does Not Impact the Calculation of Damages

Merck & Co., Inc. v. Apotex Inc. – 2013 FC 751 This action involved determining the quantum of damages to be awarded to Merck for infringement […]