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Enforcement and Remedies for AI Patents in Canada: Accounting of Profits and Beyond

October 08, 2025

When planning where to file, cost and market size matter. Remedies matter as well. One of the most compelling reasons to file AI patent applications in Canada is the possibility of an accounting of profits.  

Accounting of Profits: A Canadian Remedy with Practical Impact

While many jurisdictions offer damages only in patent infringement cases, Canada permits accounting of profits. Measured by the infringer’s profits rather than the patentee’s loss, the award may significantly exceed a damages award.

Accounting of profits can require an infringer to disgorge the profits earned because of the infringement. It is not automatic. The patentee typically elects between damages or an accounting of profits, and courts apply it where the circumstances warrant.

• The focus is on what the infringer made, rather than the patentee’s loss.
• Courts look for a clear causal link between the patented features and the profits at issue, and may consider non-infringing alternatives where appropriate.
• The Supreme Court of Canada confirmed that an accounting requires disgorging profits causally attributable to the invention and set a practical three-step approach: calculate actual profits, consider any real non-infringing option to isolate the invention’s value, then disgorge the difference (Nova Chemicals v. Dow).
• In that case, the Court affirmed an accounting of profits award of C$645 million.

For AI innovations that can scale quickly, the prospect of disgorgement can change the economics of enforcement and settlement.

Why This Matters for AI Innovators

• Deterrence: The risk of handing over profits encourages respect for Canadian patent rights.
• Leverage: Availability of this remedy strengthens negotiating position in licensing and resolution.
• Portfolio Value: Protection in a G7 jurisdiction with meaningful remedies adds substance beyond simple coverage.

Beyond Accounting of Profits

Canadian courts can tailor remedies to the case.

• Injunctions: To stop ongoing infringement.
• Damages: Lost profits or a reasonable royalty where appropriate, with interest.
• Springboard profits: Courts may require disgorgement of post-expiry profits that are causally linked to pre-expiry infringement, recognizing the “head start” created by the infringement.

Together, these features make AI patents in Canada more than a defensive filing. They provide real, enforceable value.

Conclusion

Canada is not a secondary market for AI patent filings. It offers meaningful enforcement options, including the possibility of an accounting of profits confirmed by the Supreme Court of Canada. For many portfolios, that difference strengthens leverage and can shift outcomes.