OTTAWA, Nov 18 (Reuters) – Canada’s top court on Friday denied plastics company Nova Chemicals’ appeal of a C$645 million ($482 million) payment awarded to the Dow Chemical Co in a patent infringement case.
The Supreme Court of Canada upheld a ruling by a lower court that had awarded the amount to the Dow Inc (DOW.N) unit, calculated based on profits Nova made due to the patent breach.
The award was among the biggest offered in Canada and was the first instance of so-called springboard profits being awarded in Canadian law in a case which could have wide-ranging impact to other patent infringement disputes.
Nova, owned by Abu Dhabi state fund Mubadala Investment Co, contested the calculations, arguing that it would have earned some profits irrespective of the patent infringement and asked the Supreme Court to lower the amount it owes to Dow.
It also disputed a component of the award that was calculated based on profit Nova made after Dow Chemical’s patent expired in 2014 but was considered as a result of the patent breach, called ‘springboard profits.’
The Supreme Court rejected both arguments, saying in its 8 to 1 split decision that Nova was not able to prove that it could have made the hypothetical profits it claimed.
The court also said that it was “irrelevant when the profits arise, provided they are causally connected to infringement.”
Dow said it in a statement that it was pleased with “the decision that brings the long-running litigation to a close.” Nova did not have an immediate comment.
Nova said in an emailed statement: “While we are disappointed with the outcome of our appeal, this case is now closed, and we are focused on moving forward.”
Dow Chemical sued Nova in 2010, alleging an infringement of a patent the US company held for a type of polyethylene used to make plastic shopping bags and stretch wrap.
It won its case in an Ontario court in 2017 and then at an appeals court, before Nova took its appeal to the top Canadian court.
Nova has already paid the amount it owed to Dow Chemical to satisfy the Ontario court judgement.
($1 = 1.3385 Canadian dollars)
Reporting by Ismail Shakil in Ottawa; editing by Jonathan Oatis and Alexander Smith
Our Standards: The Thomson Reuters Trust Principles.
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