How are patent infringement damages calculated in Canada?
A successful patentee elects between two measures: (1) its own lost profits on sales it would have made but for the infringement, or (2) a reasonable royalty on the infringer's sales. Courts may also order an accounting of the infringer's profits as an equitable remedy in lieu of damages.
What is a reasonable royalty in Canadian patent law?
A reasonable royalty is the rate the infringer would have paid in a hypothetical arm's-length licence negotiation. It is applied to the royalty base (the infringing sales attributable to the patented invention). Courts consider comparable licences, the invention's contribution, and industry norms.
What is 'reasonable compensation' for the pre-grant period?
Section 55(2) of the Patent Act entitles a patentee to reasonable compensation for infringing acts committed between publication of the application and grant of the patent. This is typically measured as a reasonable royalty and applies before the full damages remedy becomes available on grant.
Can I get an accounting of profits in Canada?
Yes. Unlike the US, Canadian courts have discretion to award an accounting of the infringer's profits as an equitable alternative to damages. This can exceed a reasonable royalty where the infringer earned substantial profits, but the court weighs factors such as delay and the patentee's conduct.