When a patent is infringed in Canada, a successful plaintiff can elect damages, or an accounting of the profits the defendant made by infringing. Unless there is an equitable reason to refuse an accounting of profits, the choice belongs to the plaintiff.
In Apotex Inc. v. Bayer Inc., 2018 FCA 32, the Federal Court of Appeal ruled in no uncertain terms that the infringer does not get to dictate the remedy. The infringer, Apotex, raised a novel argument that it could impose an accounting of profits on Bayer. In the Court below, Justice Fothergill rejected Apotex’s argument, holding … Continue Reading