Osgoode Hall Review of Law and Policy (OHRLP)

Liability for patent infringement is statutorily limited to the term of the patent.  However nothing limits recovery to losses suffered during that same term.  Since patent infringement is tort-like in many respects, traditional damages principles apply to quantify damages suffered after the expiry of the patent.  Recent Canadian and English case law has indicated a willingness to consider such recovery.  Consequently, the courts may be far less willing to grant springboarding injunctions.  Patentees seeking to prevent springboarders must satisfy the tripartite interlocutory injunction test, which requires demonstration of irreparable harm.  Since post-expiry losses may now be considered quantifiable and recoverable, a patentee will seldom demonstrate that it will suffer irreparable harm.  This article argues that losses suffered after a patent has expired due to pre-expiry infringement of that patent are recoverable and that the recoverability of post-expiry patent losses will all but preclude the availability of interlocutory injunctions to restrain springboard infringement.

Kiernan A. Murphy, Post-expiry Patent Losses: Recoverable, but Unpreventable? (2010) Osgoode Hall Rev. L. Pol’y 133.