On September 6th, 2016 the Federal Court of Appeal upheld a Federal Court decision finding Nova Chemicals Corporation ("Nova") liable for infringement of a patent owned by The Dow Chemical Company ("Dow") by Nova's manufacture and sale of its SURPASS film-grade polymers ( 2016 FCA 216).
Steven Garland, Jeremy Want, Colin Ingram and Daniel Davies of Smart & Biggar acted as co-counsel on behalf of Dow in both the trial and on the appeal.
As previously reported, 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 SURPASS 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 physical or mechanical characteristics. Dow sells such compositions under the name ELITE.
Nova appealed the decision of Justice O'Keefe on numerous grounds relating to claims construction, validity and infringement.
In upholding Justice O'Keefe's decision, the Court of Appeal emphasized that deference is owed to a trial judge in his appreciation of the evidence. The court emphasized that this includes the trial judge's appreciation of expert evidence that affects the construction of the patent, consistent with the Court of Appeal's recent decision to the same effect in Cobalt Pharmaceuticals Company v Bayer Inc, 2015 FCA 116 (as reported previously).
The Court of Appeal ultimately held that Nova's grounds of appeal amounted to "no more than mere disagreements" with Justice O'Keefe's factual findings and assessments of the expert evidence. As Nova failed to demonstrate any error of law or palpable and overriding error of fact, the appeal was dismissed. A further trial on the quantum of compensation owed to Dow as a result of Nova's infringement is scheduled for December, 2016.
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