On September 6th, 2016 the Federal Court of Appeal
upheld a Federal Court decision finding Nova Chemicals Corporation
("Nova") liable for infringement of a patent owned by The
Dow Chemical Company ("Dow") by Nova's manufacture
and sale of its SURPASS film-grade polymers (
2016 FCA 216).
As previously reported, 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 SURPASS 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 physical or
mechanical characteristics. Dow sells such compositions under the
Nova appealed the decision of Justice O'Keefe on numerous
grounds relating to claims construction, validity and
In upholding Justice O'Keefe's decision, the Court of
Appeal emphasized that deference is owed to a trial judge in his
appreciation of the evidence. The court emphasized that this
includes the trial judge's appreciation of expert evidence that
affects the construction of the patent, consistent with the Court
of Appeal's recent decision to the same effect in Cobalt
Pharmaceuticals Company v Bayer Inc, 2015 FCA 116 (as reported
The Court of Appeal ultimately held that Nova's grounds of
appeal amounted to "no more than mere disagreements" with
Justice O'Keefe's factual findings and assessments of the
expert evidence. As Nova failed to demonstrate any error of law or
palpable and overriding error of fact, the appeal was
dismissed. A further trial on the quantum of compensation
owed to Dow as a result of Nova's infringement is scheduled for
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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