Monday, February 11, 2019

Remedies News from Canada

1.  Norman Siebrasse published a post last month on Sufficient Description titled Legal Fees Not a Deductible Expense in an Accounting.  The case, Human Care Canada Inc. v. Evolution Techs. Inc. 2018 FC 1302 supplementary reasons 2018 FC 1304.  The case holds, among other matters, that the defendant is not entitled to deduct its litigation expenses from an award of profits (which makes sense).  It also quotes a 2011 case for the proposition that courts should decline to enter permanent injunctions in favor of prevailing patent owners "only in very rare circumstances," and denies compound interest. 

2.  Steven Brachmann recently published a post on IP Watchdog titled Canada Patent Law Changes Are Bad News for Patent Owners.  From the title, you might think that Canada was thinking of reintroducing compulsory licensing of pharmaceuticals, or maybe of abolishing patents altogether, but in fact the changes are the (in my view, rather modest) ones I've blogged about a couple of times (here and here).  Specifically, Canada recently enacted amending its Patent Act to include a provision stating that FRAND commitments are binding on subsequent assignees.  The legislation also permits use of prosecution history "[i]n any action or proceeding respecting a patent" (as the U.S. does); authorizes the regulation of demand letters (something many states in the U.S. now permit, though to my knowledge these laws haven't been used much); establishes a statutory experimental use defense (like many countries have, and which I believe Canada previously had under common law); and extends the prior user defense a bit.  Ah, but the sky is falling . . . 

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In other news, the Federal Circuit last week affirmed a district court decision that a case was exceptional, and that fees amounting to $600,000 were merited, in Drop Stop LLC v. Zhu; and it (1) affirmed a contempt order relating to a press release the publication of which violated a protective order, and (2) remanded an order awarding litigation sanctions to allow the district court to vacate that order, in  Codexis, Inc. v. EnzymeWorks, Inc.   Both cases are nonprecedential and quite fact-specific.        

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