The Dow Chemical Company ("Dow") has prevailed in a
Canadian patent infringement suit against Nova Chemicals
Corporation ("Nova") relating to Nova's manufacture
and sale of its SURPASS film-grade polymers.
In public reasons for judgment issued on
September 5, 2014, Justice O'Keefe of the Federal Court upheld
the validity of Dow's Canadian Patent No. 2,160,705 (the
'705 Patent), and found that Nova's SUPRASS polymers
infringed the patent.
Dow's '705 Patent relates to polyethylene compositions
for use in, amongst other things, packaging applications. The
compositions claimed in the patent comprise blends of two polymers
with particular characteristics. Dow sells such compositions under
the name ELITE. Dow alleged in the suit that Nova's SURPASS
polymers infringed the '705 Patent. Nova denied infringement
and alleged that the '705 Patent was invalid on various grounds
including lack of utility, claims broader than the invention made
or disclosed, anticipation, obviousness, double patenting,
ambiguity and insufficiency.
In his reasons, Justice O'Keefe construed various terms used
in the asserted claims of the '705 Patent including
"ethylene polymer composition," "comprising,"
"homogeneously branched," "heterogeneously
branched," "linear," "substantially
linear," "slope of strain hardening coefficient" and
"linear polymer fraction." Justice O'Keefe found,
based on the evidence, including numerous experiments conducted for
trial, that the SURPASS products infringed each of the asserted
Justice O'Keefe further rejected each of the grounds of
invalidity asserted by Nova, and thus upheld the validity of the
As a result of his findings of infringement and validity,
Justice O'Keefe awarded Dow various remedies including:
an election between damages and an accounting of profits;
reasonable compensation for infringement that occurred between
the publication date of the '705 Patent and its date of
pre- and post-judgment interest; and
Nova has appealed the judgment of Justice O'Keefe to the
Federal Court of Appeal.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
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