CANADA Law and Practice Contributed by: Mark Davis, Andrew Skodyn, Sean Jackson, Kassandra Shortt and Mackenzie Stewart, Cassels Brock & Blackwell LLP
If an infringer violates the non-monetary terms of the judgment, for example by continuing to sell despite an injunction, then contempt proceed- ings may be brought to force the defendant to comply. 6.2 Rights of Prevailing Defendants A prevailing defendant may recover a portion of their legal fees and all reasonable disburse- ments. The defendant’s legal fees are usually assessed according to a tariff or are awarded as a lump sum that is generally in the range of 25–50% of the actual fees. If an interlocutory injunction was awarded against a defendant who ultimately prevails, they may be able to recover damages attributable to the injunction. In cases where a counterclaim for a declaration of invalid- ity is brought, a judgment invalidating the pat- ent will also be available, rendering the patent unenforceable. 6.3 Types of Remedies In general, a person who infringes a patent is liable to the patentee and to all persons claim- ing under the patentee for all damage sustained by the patentee by reason of the infringement. The available remedies are discussed in 6.1 Remedies for the Patentee , but generally fall into three categories: compensatory (ie, dam- ages or profits), preventative (ie, injunction) and declarative (ie, a declaration of infringement and/ or validity). 6.4 Injunctions Pending Appeal If a patent is found valid and infringed at trial, a permanent injunction will almost always be granted, unless there is a public policy reason not to (eg, doing so would deprive the public of a medicine that they could not otherwise access). A permanent injunction is enforceable pend- ing appeal; however, the appellant can bring a motion seeking to have the injunction stayed
pending the appeal. The test to obtain a stay pending appeal is difficult, rarely sought and even more rarely granted. It requires the moving party to establish that its appeal raises a genuine issue, that the appellant will suffer irreparable harm if no stay is granted, and that the balance of convenience favours granting a stay. The sec- ond and third factors of this test are extremely difficult for an infringer to establish. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings Each Canadian court has rules for appeals to the appellate court for that jurisdiction. Appeals for intellectual property cases are treated the same as any other civil appeal. They take place before a panel of three judges of the Federal Court of Appeal, or a panel of three judges of the provin- cial Court of Appeal for the provincial superior court in which the trial took place. After the appeal decision is rendered by the applicable Court of Appeal, the unsuccessful party has the right to seek leave to appeal further to the Supreme Court of Canada. Leave applica- tions to the Supreme Court of Canada are very rarely granted in intellectual property cases. 7.2 Type of Review Appeals are not a full review of the facts of the case or a de novo review of the evidence pre- sented at trial. Appeals are primarily directed to a review of the decision of the trial judge for any legal errors, though serious errors of fact are also reviewable. Significant deference is given to the trial judge on questions of fact and the evaluation of the evidence at trial, while purely legal questions are subject to a less deferential correctness standard. The hearing of an appeal
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