Damages

August 10, 2020
Macro photograph of a computer keyboard with black keys.

Infringer Uses Marking Requirement to Escape Pre-Suit Damages

Fed. Cir. 2019-2041 - The CAFC held that Packet Intelligence was precluded from claiming $3.5M in pre-suit damages because the marking requirement was not met.
April 16, 2019
damages

Canada Federal Court of Appeal Affirms Punitive Damages Award

2019 FCA 29 - Canada's FCA refuses to intervene in trial judge's decision with respect to punitive damages.
June 27, 2018
accounting

Defendants Are Not Entitled to Elect Accounting of Profits

2018 FCA 32 - The FCA dismissed Apotex’s appeal challenging the remedial decision, regarding Bayer's Canadian Patent No. 2,382,426, holding that subsection 57(1) of the Patent Act did not grant a defendant in a patent infringement suit the right to choose an accounting of profits over damages to be paid to the patentee.
October 3, 2017
Federal Court Section 7

Federal Court dismisses Section 7(a) Trade-marks Act claim over lack of causal link

2016 FC 986 - The FC dismissed Supertek's claim that Mishan engaged in conduct contrary to Section 7(a) of the Trade-marks Act, in relation to a Canadian patent.
August 29, 2017

Federal Court Awards Dow over $644 Million in Damages

2017 FC 637 - The FC addressed three outstanding issues in the calculation of damages and profits and ordered Nova to pay Dow over $644 million for infringing Dow's Canadian patent.
August 22, 2017

Federal Court of Appeal remits decision based on hearsay evidence back to the Federal Court for redetermination

2016 FCA 161 - The FCA remitted a proceeding back to the FC for redetermination after agreeing with Pfizer that part of Teva’s evidence in the FC decision was based on hearsay.
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.
May 9, 2017

Apotex’s Claims for Damages for Delayed Market Entry Allowed to Proceed

2017 ONSC 224 - Apotex sought compensation from Eli Lilly for damages suffered for delayed entry to the market for its generic version of olanzapine; the ONSC ordered Eli Lilly to pay Apotex a total of $20,000.
April 25, 2017

Federal Court finds foreign, non-exclusive licensee entitled to damages

2016 FC 593 - The FC awarded Janssen Canada and Janssen US almost $19 million in total damages for Teva's infringement of a Japanese entity's patent, for which Janssen US had never even exercised its licence in Canada.
August 8, 2016

Knowledge of Related Patents not “Actual Knowledge” for Awarding Pre-Issuance Damages

In U.S. patent infringement, the “actual notice” requirement in 35 USC § 154(d) requires actual knowledge of a published patent application. Knowledge of related patents, even those sharing a description, and indirect references to a published patent application in emails may not be sufficient to prove actual notice.