Canada
Answer ... The practice and law with regard to remedies may differ as between various Canadian courts with jurisdiction to hear patent infringement cases. The following discussion relates to remedies in the Federal Court, where most patent infringement litigation is commenced.
Yes. Permanent injunctions, interlocutory injunctions and interim injunctions are available in patent infringement cases in the Federal Court.
A permanent injunction may be granted to a successful plaintiff after trial, which will restrain the defendant from continuing to infringe the patent.
An interlocutory injunction is made after the litigation has been started and restrains the defendant from committing certain acts while the litigation is pending.
An interim injunction is made after the litigation has started and before the trial, but usually applies only for a short and defined period of time. Under the Federal Courts Rules, a judge may grant an interim injunction on an ex parte basis for up to 14 days, on certain conditions, although this may be extended on motion.
Other types of injunctions are also available, such as:
- Mareva injunctions, which freeze assets to avoid the risk that the defendant may move or otherwise dispose of assets prior to judgment; and
- quia timet injunctions, to restrain acts which have not yet occurred.
The Federal Court may also grant:
- Anton Piller orders, which are in the nature of a civil search warrant that allows a plaintiff’s representatives to attend another’s premises and to search for and seize documents and things pertinent to the litigation; and
- Norwich orders, which may be used to compel a third party to disclose information or documents in its possession.
Canada
Answer ... Injunctions are equitable remedies. The Federal Court has discretion as to whether to grant an injunction in any case.
Canada
Answer ... Once the plaintiff establishes infringement (and assuming that the patent is held to be valid, if validity is at issue), the Federal Court may award damages or an accounting of profits.
Canada
Answer ... Damages are intended to restore the plaintiff to the position it would have been in if the infringement had never occurred. Various measures of damages are available depending on the circumstances of a case, such as the plaintiff’s lost profits (eg, if the plaintiff can show that it would have been able to make its own sales had it not been for the defendant’s infringing sales) and reasonable royalties (eg, if the plaintiff cannot show that it would have made its own sales).
An accounting of profits is an equitable remedy which is measured based on the defendant’s profits and may be granted at the court’s discretion as an alternative to damages, if elected by the plaintiff.
In addition to damages or an accounting of profits for a defendant’s post-grant activities, a plaintiff may seek reasonable compensation for pre-grant activities. In particular, a person is liable to pay reasonable compensation for any damage sustained by the patent owner or any persons claiming under the patent owner by reason of acts of the person during the period of time from when the patent application became open to public inspection and before it was granted, which would have constituted infringement of the patent if it had been granted on the day the application became open to public inspection (Section 55(2) of the Patent Act).
Canada
Answer ... To be awarded a permanent injunction in a patent infringement case, a plaintiff must establish its legal rights (eg, that the patent has been infringed and that the patent is valid, where validity is challenged). The court must also be satisfied that a permanent injunction is an appropriate remedy. The court will frequently grant a permanent injunction in a patent infringement case if a plaintiff succeeds on the issues of infringement and validity, but this is not guaranteed.
Three criteria must be demonstrated by a plaintiff before the court will grant either an interlocutory or interim injunction:
- There is a serious question to be tried;
- Not granting the injunction would result in irreparable harm to the plaintiff; and
- The balance of convenience favours granting an injunction (RJR-Macdonald Inc v Canada (Attorney General), [1994] 1 SCR 311).
Historically, it has proven difficult to obtain interlocutory injunctions in patent infringement cases in the Federal Court, which has held that the threshold of establishing irreparable harm is very high.
The Federal Courts Rules further provide that unless the judge orders otherwise, a party seeking an interlocutory injunction shall undertake to abide by any order concerning damages caused by the granting or extension of the injunction.
Canada
Answer ... The Federal Court does not calculate a plaintiff’s damages and then multiply such damages by some factor or multiplier in order to penalise a defendant for its actions.
However, the Federal Court has discretion to award punitive damages in circumstances of high-handed, malicious, arbitrary or highly reprehensible misconduct by a defendant. In one patent infringement case, the Federal Court of Appeal upheld an award of punitive damages and noted that “[w]here a person infringes a patent which it knows to be valid, appropriates the invention as its own, and markets it as its own knowing this to be untrue, punitive damages may be awarded when an accounting for profits or compensatory damages would be inadequate to achieve the objectives of retribution, deterrence and denunciation of such conduct” (Eurocopter v Bell Helicopter Textron Canada Limitée, 2013 FCA 219).
Canada
Answer ... Yes, sanctions are available.
Canada
Answer ... In addition to damages or an accounting of profits, the court may order the delivery up or destruction of all infringing products. This remedy requires that infringing products in the possession or control of the defendant be delivered to the plaintiff or destroyed.
Canada
Answer ... At the conclusion of a patent infringement case, the court will usually order the unsuccessful party to pay the costs of the successful party. Costs are meant to provide some compensation to the successful party for the expense of conducting the litigation.
Canada
Answer ... The Federal Court has discretion not only to award costs, but also to determine the amount of costs, and different approaches are available in this regard.
For example, costs may be calculated by reference to a tariff to the Federal Courts Rules, which involves including steps listed in the tariff where those steps were taken in the lawsuit and selecting an appropriate scale and amount of units depending on the complexity of the case, among other factors. Under this approach, in addition to the amounts selected from the tariff, the successful party may be awarded as part of its costs some or all of its disbursements.
As another approach, the court may award lump-sum costs instead of determining costs by reference to the tariff. In doing so, the court may fix the costs as some percentage of the party’s legal fees actually incurred.
The court has discretion to award costs on a ‘solicitor-client’ basis, where a party is awarded full recovery for its actual fees incurred. Solicitor-client costs can be awarded, for example where a party has engaged in reprehensible, scandalous or outrageous conduct. However, solicitor-client costs are awarded infrequently.