Thursday, July 16, 2009

Damages Calculations in Intellectual Property Cases in Canada (2007)
Norman Siebrasse, Alexander Stack, and the Cole & Partners IP Litigation Support Group
(2008) Vol 24 No. 2 Canadian Intellectual Property Review, pp 153-188

This is an update of an article we (members of Cole & Partners and I) first published in 2001. As with our recent article on accounting of profits, a big change is the addition of Norman Siebrasse as a co-author. Norman certainly bring a new level of vigor and rigorous thinking to these issues, which I think is reflected in the final article.

This is an update - and the fundamental law of damages has not changed since 2001. However, there is a greater emphasis in recent case-law - and in the article - on the remedial basis for the remedy, and on grounding patent law (including remedies) in fundamental common law tort principles. This leads to some interesting questions - for example, is the commonly stated rule from United Horse Shoe (1888, House of Lords) that damages are calculated assuming the infringer had never entered the market, or that it is not relevant that the plaintiff would have been equally hurt had the defendant produced a non-infringing product, good law? My suspicion is that it is not.

As with the Accounting of Profits article, the CIPR version of the article is heavily cut from the version available on the Cole & Partners website .

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