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Patent Remedies: One More Reason to Consider Filing in Canada

November 10, 2026

When deciding where to pursue patent protection internationally, companies often focus on market size, competitors, filing costs, and commercial activity.

Another important consideration is the strength of the remedies available if the patent is ultimately infringed.

Canada provides patent owners with a strong range of remedies, including damages, an accounting of the infringer’s profits, injunctive relief, and compensation for certain pre-grant activity. Those remedies are one more reason to consider Canada as part of an international patent portfolio.

Damages or the Infringer’s Profits

A successful Canadian patent owner may be entitled to damages resulting from infringement.

In appropriate cases, however, Canadian courts may instead permit the patent owner to elect an accounting of the infringer’s profits.

The distinction can be significant. Damages generally focus on the loss suffered by the patent owner. An accounting of profits instead focuses on profits earned by the infringer that are causally attributable to the infringement.

The potential significance of this remedy was illustrated in Nova Chemicals Corp. v. Dow Chemical Co., 2022 SCC 43.

Dow was awarded approximately CAD $645 million, the largest reported patent infringement award in Canadian history. The award included reasonable compensation for the pre-grant period, an accounting of Nova’s profits during the patent term, and post-expiry “springboard” profits causally attributable to infringement that occurred during the term.

The Supreme Court of Canada upheld the award and confirmed that an infringer may be required to disgorge profits causally attributable to infringement even where those profits materialize after the patent expires.

Because an accounting focuses on the infringer’s gains rather than the patent owner’s loss, it can in some cases produce a substantially different recovery than conventional damages.

An accounting of profits is an equitable and discretionary remedy and is not available automatically. Its availability can nevertheless materially affect the value of Canadian patent rights.

Other Remedies Are Available Too

Canadian patent owners may also seek permanent injunctive relief. Unlike in the United States, Canadian courts do not apply the four-factor test from eBay Inc. v. MercExchange, L.L.C., and permanent injunctions are commonly granted following a finding of infringement.

Interlocutory injunctions before trial, by contrast, are rarely granted in Canadian patent cases.

Section 55(2) of the Patent Act further provides for reasonable compensation for activity occurring after a patent application becomes open to public inspection but before the patent is granted, where that activity would have infringed the patent had it been granted. Nova itself illustrates this remedy, as part of Dow’s award was attributable to the pre-grant period.

Canada also follows a loser-pays costs regime, under which an unsuccessful party is generally ordered to contribute to the successful party’s legal costs.

Together, these remedies mean that a Canadian patent can provide more than a right to exclude on paper. It can provide meaningful economic remedies if that right is infringed.

One of Many Reasons to File in Canada

Remedies should not be the only consideration when deciding where to pursue patent protection.

Market size, competitors, manufacturing activity, commercial objectives, enforcement strategy, and filing costs all matter.

But remedies matter too.

For companies deciding which foreign jurisdictions deserve a place in their patent portfolios, Canada’s availability of damages, an accounting of profits, injunctive relief that commonly follows a finding of infringement, and pre-grant compensation is another reason not to overlook Canadian protection.

From a commercial perspective, this means a Canadian patent can carry meaningful enforcement value even where Canada is not the company’s largest market. For businesses making selective foreign filing decisions, the combination of relatively modest filing costs and potentially significant remedies can make Canada an attractive jurisdiction to include in a broader portfolio.