The Dow Chemical Company et al v. Nova Chemicals Corporation

2017 FC 350; 2020 FCA 141
Intellectual property dispute involving an accounting of profits earned by Nova Chemicals Corporation from the alleged infringement of a Dow patent related to production of polyethylene products.

In a previous decision, Justice O’Keefe ruled that Nova had infringed Dow’s patent relating to Metallocene Linear Low-Density Polyethylene by manufacturing its SURPASS products.  As a result, Dow was given the option to elect between Nova’s profits or its own damages resulting from Nova’s infringement.  Dow elected to recover Nova’s profits.

In this action, CHS was retained by Counsel for Dow, the Plaintiff in this matter, as damages quantification experts to estimate Nova’s profits earned from its infringement of Dow’s patent.  Our work involved reviewing financial documents, assisting counsel with examination for discovery, preparing financial analyses, authoring expert reports related to Nova’s profits, and providing testimony in the Federal Court.

This case featured many noteworthy issues, including deduction of fixed costs, springboard profits, currency conversion of Nova’s profits and the rate to be used in calculating Nova’s “profits on profits”.  The trial judge agreed with CHS’ conclusions relating to springboard profits, currency conversion, profits on profits, and applying a full-cost approach if Nova’s plant operated at full capacity.

Dow was awarded $645 million, including prejudgment interest, which is the largest reported award in a Canadian patent infringement case.

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