Canada’s Intellectual Property Firm

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.

Steven Garland, Jeremy Want, Colin Ingram and Daniel Davies of Smart & Biggar acted as co-counsel on behalf of Dow.

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 claims.

Justice O’Keefe further rejected each of the grounds of invalidity asserted by Nova, and thus upheld the validity of the ‘705 Patent.

As a result of his findings of infringement and validity, Justice O’Keefe awarded Dow various remedies including:

  1. an election between damages and an accounting of profits;
  2. reasonable compensation for infringement that occurred between the publication date of the ‘705 Patent and its date of issuance;
  3. pre- and post-judgment interest; and
  4. costs.

Nova has appealed the judgment of Justice O’Keefe to the Federal Court of Appeal.

For further information, please contact a member of our firm’s Litigation group.

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 directly.