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2017
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WWW.LEXPERT.CA
Sarabia, Luis G. Davies Ward Phillips & Vineberg LLP
(416) 367-6961 lsarabia@dwpv.com
Mr. Sarabia acts as counsel in a broad range of commercial litigation
including class actions and international arbitrations. He has significant
expertise in securities cases and in international mining litigation often
involving Spanish-speaking parties.
Sammon, Matthew Lenczner Slaght Royce
Smith Griffin LLP (416) 865-3057 msammon@litigate.com
Recognized as a leading and formidable trial counsel, Mr. Sammon has
extensive litigation experience in complex corporate and commercial
litigation, professional liability, medical malpractice and employment cases.
He regularly conducts trials, regulatory hearings and arbitral proceedings.
He represents large and mid-sized corporations across a wide range of sectors.
Saint-Onge, AdE, Jean Borden Ladner Gervais LLP
(514) 954-2551 jsaintonge@blg.com
Senior Counsel focused on class actions, product liability, competition and
environmental law. He has acted as defence counsel in numerous precedent-
setting cases and represented clients in multijurisdictional and cross-border
class actions. Listed among the leading practitioners in the field of Class
Actions-Litigation in Lexpert; Fellow, International Academy of Trial
Lawyers (IATL).
Roy, Christian B. Norton Rose Fulbright Canada LLP
(418) 640-5028 christian.roy@nortonrosefulbright.com
Mr. Roy is local chair of the litigation group in the Québec office. His
practice focuses primarily on corporate restructuring, bankruptcy, insolvency
and realization of bank guarantees. His services are often retained by
companies with restructuring needs and by court-appointed officers, financial
institutions, secured and unsecured creditors and purchasers of assets from
distressed companies.
Rothstein, LSM, Linda R. Paliare Roland
Rosenberg Rothstein LLP
(416) 646-4327 linda.rothstein@paliareroland.com
Ms. Rothstein's civil and administrative practice focuses on class
actions, commercial litigation, professional liability, public law, employment
and human rights, judicial reviews and appeals. She is also a mediator
and arbitrator.
Ross, Kevin L. Lerners LLP
(519) 640-6315 kross@lerners.ca
Mr. Ross practises exclusively in the area of civil litigation with an emphasis
on personal injury, insurance litigation, commercial litigation, professional
negligence and health law. Certified as a Specialist in Civil Litigation by the
LSUC. Has lectured in the civil litigation, advocacy and employment law
sections of the Bar Admission Course in London.
LEXPERT-RANKED LAWYERS
of Perley-Robertson, Hill & McDougall LLP repre-
sented Kyrgyzstan.
THE DOW CHEMICAL COMPANY,
DOW GLOBAL TECHNOLOGIES INC.
AND DOW CHEMICAL CANADA ULC
V. NOVA CHEMICALS CORPORATION
DECISION DATE: APRIL 19, 2017
On April 19, Justice Fothergill of the Federal Court
issued his public judgment and reasons addressing
various issues in the calculation of the compensa-
tion to be paid as a result of earlier patent infringe-
ment action between e Dow Chemical Com-
pany ("Dow") and NOVA Chemicals Corpora-
tion ("Nova") (2014 FC 844). On July 5th, Justice
Fothergill issued a Supplemental Judgment and
Reasons providing the final amount of compensa-
tion to be paid (2017 FC 637).
HE LIABILITY PHASE
e proceedings before the Federal Court were
commenced in 2010. During the liability phase, the
Federal Court upheld the validity of Dow's Can-
adian Patent No. 2,160,705 (the '705 Patent) and
found that Nova's SURPASS polymers infringed.
e polymers are polyethylene compositions used
in packaging applications including heavy duty
bags, pallet wrapping and food packaging. Dow
sells such compositions under the name ELITE.
As a result of the findings of infringement, the
Federal Court awarded Dow various remedies,
including an election between damages and an ac-
counting of Nova's profits, reasonable compensa-
tion for infringement that occurred between the
publication date of the '705 Patent and its date
of issuance, interest and costs. Dow subsequently
elected for an accounting of Nova's profits.
Nova's appeal of the liability decision to the Fed-
eral Court of (2016 FCA 216), and application for
leave to appeal to the Supreme Court of Canada,
were both dismissed.
THE REMEDIES PHASE
"Springboard" profits
Dow claimed that Nova's infringement of the
'705 Patent provided it with a "springboard" into
the market, which resulted in Nova continuing to
profit from its infringing activity aer the expiry of
the '705 Patent. Justice Fothergill concluded that
Nova's post-expiry profits resulting from its pre-ex-
piry infringing activities should be included in the
accounting of profits for a period of approximately
20 months post-expiry.
Accounting of profits and the deduction of costs
Two important issues were before the court. e
first issue related to the appropriate measure of the
cost of ethylene, a key component used to make
the infringing SURPASS products. Nova claimed
that it should be entitled to deduct an "economic
