Canada’s Federal Court Awards Costs of Almost $4.4 Million for Remedies Phase of Patent Infringement Action

On August 8, 2017, the Federal Court of Canada (FC) awarded costs totalling almost $4.4 million to Dow Chemical Company (Dow) for the remedies phase of a patent infringement action in Dow Chemical Company v Nova Chemicals Corporation (2017 FC 759).

In the liability phase of the action (decision on the merits previously reported in E-TIPS® Newsletter here), the Federal Court of Appeal upheld a $6.5 million costs award to Dow for infringement of its patent relating to film-grade polymers (previously reported in E-TIPS® Newsletter here).

In the remedies phase, the FC awarded Dow a reasonable royalty of 8.8% for the period between application and patent issue and an accounting of profits, including “springboard” profits, for a total of $645 million (previously reported in E-TIPS® Newsletter here and here).

Dow sought a lump sum costs award of approximately $5.5 million for the remedies phase. The FC reduced the award to approximately $4.4 million, comprising almost $3.2 million in disbursements and $1.2 million in legal fees. Under the Federal Court Rules, legal fees are determined in accordance with a Tariff. The FC applied the approach used by the FC in the liability phase and awarded a lump sum which was roughly equivalent to three times the maximum available under the Tariff.

Summary By: Michelle Noonan