snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Tag Archives: damages awards

Canadian Patent Damages – Mitigation and Person Claiming Under the Patentee

Posted in Intellectual Property, Litigation, Patents

Not long after its decision in Apotex Inc. v. Bayer Inc (2018 FCA 32 – see our blog), the Federal Court of Appeal released another important decision on the subject of remedies for patent infringement (full decision here: Teva Canada Limited v. Janssen Inc., 2018 FCA 33).

The Court of Appeal confirmed that whether a plaintiff has reasonably mitigated its loss in a patent case is a question of fact. The burden lies with the defendant to establish the plaintiff failed to take reasonable steps that were available to mitigate. Further, the Court of Appeal reiterated … Continue Reading

Canada’s Federal Court of Appeal Says Infringers Cannot Dictate the Remedy

Posted in Intellectual Property, Litigation, Patents

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.[1]

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

Federal Court Holds No Damages for Trivial Privacy Breaches

Privacy Damage Awards under Section 16 of PIPEDA

Posted in Privacy

The recent decision Townsend v. Sun Life Financial adds to the emerging case law on privacy damage awards under Section 16 of Personal Information Protection and Electronic Documents Act. In Townsend, the Court refused to award to damages to Mr. Townsend, who had alleged that Sun Life disclosed his medical information to a third party without his consent and had failed to safeguard his personal information. The Court determined that the breach was minor, that Mr. Townsend suffered no injury and that Sun Life promptly and effectively corrected its errors.

What Happened in This Case? 

Under PIPEDA, among … Continue Reading