32 www.lexpert.ca
Top 10 Business Decisions
CO-WRITTEN BY AIDAN MACNAB, BERNISE CAROLINO
NOVA CHEMICALS CORPORATION
produced products falling under Dow
Chemical Company's patent for thin-
but-strong plastics known as metallo-
cene linear low-density polyethylenes.
The Federal Court and Federal Court of
Appeal ordered Nova to pay Dow approx-
imately $645 million for its infringement
of Dow's patent.
e judge's award equalled what Nova
made from selling the patented plastics mi-
nus the total production costs. Nova could
subtract only the cost of ethylene produc-
tion. Ethylene is the primary ingredient in
the patented plastics. Nova was not per-
mitted to subtract ethylene's higher market
price. e judge also found that Dow was
entitled to "springboard profits," which
arise aer the patent expires but are con-
nected to the infringement that occurred
when the patent was protected.
NOVA CHEMICALS CORP. V. DOW CHEMICAL CO.,
2022 SCC 43
• Nova Chemicals Corporation > Torys LLP
> Andrew Bernstein, Sheila Block, Nicole
Mantini, Jonathan Silver
• The Dow Chemical Company, Dow Global
Technologies Inc., Dow Chemical Canada
ULC > Smart & Biggar LLP > Steve
Garland, Jeremy Want, Daniel Davies,
Matthew Burt
• Bell Canada, Rogers Communications
Canada Inc., TELUS Communications Inc.,
Vidéotron ltée > IMK > Audrey Boctor,
Danielle Marcovitz
• Canadian Generic Pharmaceutical
Association > Goodmans LLP > Andrew
Brodkin, Harry Radomski, Jordan Scopa
CLIENTS > FIRMS > LAWYERS
A majority of the Supreme Court of
Canada dismissed Nova's appeal and af-
firmed the patent infringement award. e
majority decision addressed the principles
that should govern the calculation of a
plaintiff 's recovery under the accounting
of profits remedy. It described the remedy
as flexible, equitable, and designed to pro-
tect the "patent bargain." It covered var-
ious aspects of the remedy, including the
"differential profits" calculation approach.
According to the 8–1 decision, the court
should deduct profits only from the patent
infringer's comparable, non-infringing prod-
ucts. A deduction for a hypothetical "non-
infringing option" would provide an unfair
advantage to larger businesses with the luxu-
ry of alternative product lines and adversely
affect "the weak," said the SCC's majority.
e $645 million patent infringement
award is the largest in Canadian history. e
nominator notes that the case is significant
for dealing with numerous issues related to
the appropriate methodolog y for quanti-
fying the profits arising from infringement
that are disgorged to the plaintiff.
