Introduction The Canadian Patent Act states that any person who infringes a patent is liable to the patentee for all damages sustained by the patentee by reason of the infringement. The remedy for damages, so stipulated in the Act, may be categorized as a legal one. When one invokes the legal remedy of damages, the Court will seek to allow the Plaintiff to make good on its loss. As such, damages are only awarded for proven loss and the usual burden of proof lies with Plaintiff.
Equitable remedies have a different basis.
An equitable recourse is normally invoked against the Defendant who has illegally received and withheld property belonging to Plaintiff, and has made profits from same. In such cases, Defendant is ordered to restore the property or the profits. Thus, contrary to a recourse for damages, in equity it is Defendant's gain which is determined and not Plaintiff's proven loss. The Patent Act does not provide for the equitable remedy for profits. However, the remedy has been granted on at least three occasions by the Federal Court of Canada in patent infringement actions in the last ten years, and will more than likely grow in popularity given the higher awards usually associated with it.