Damages Calculations in Intellectual Property Cases in Canada

Abstract:

In intellectual property cases, there are two types of monetary remedy: damages and an accounting of profits. Damages represent the patentee’s loss and are the default remedy in the sense that a court is obliged to award damages on proof of infringement and consequent loss. This article reviews the law of damages in intellectual property cases. The focus is on patent cases, although the reasoning generally applies in trade-mark and copyright cases. It revises and updates an article published in 2001, particularly expanding the discussion of causation in light of recent Supreme Court jurisprudence. It is a companion to an article dealing with the accounting of profits remedy that appeared in issue 24(1) of this journal.