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20 October 2014
The Dow Chemical Company has prevailed in a Canadian patent infringement suit against Nova Chemicals Corporation relating to Nova's manufacture and sale of its Surpass film-grade polymers.
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 2,160,705 (the '705 patent), and found that Nova's Surpass polymers infringed the patent.
Dow's '705 patent related to polyethylene compositions for use in, among other things, packaging applications. The compositions claimed in the patent comprised blends of two polymers with particular characteristics. Dow sold such compositions under the name Elite. Dow alleged in the suit that Nova's Surpass polymers infringed the '705 patent. Nova denied infringement and alleged that the '705 patent was invalid on various grounds, including lack of utility, claims broader than the invention made or disclosed, anticipation, obviousness, double patenting, ambiguity and insufficiency.
In his reasons, O'Keefe construed various terms used in the asserted claims of the '705 patent, including:
Based on the evidence, which included numerous experiments conducted for trial, O'Keefe found that the Surpass products infringed each of the asserted claims.
He further rejected each of the grounds of invalidity asserted by Nova, and thus upheld the validity of the '705 patent.
As a result of his findings of infringement and validity, O'Keefe awarded Dow various remedies, including:
Nova has appealed to the Federal Court of Appeal.
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