Accounting of Profits to Remedy Biotechnology Patent Infringement

A number of important agricultural biotechnology patent disputes have arisen in Canada since the 2004 Supreme Court of Canada decision in Monsanto v. Schmeiser. Typically, defendants no longer contest issues of patent validity or infringement. Instead, the controversies have shifted to discussions about applicable remedies for infringement. The Schmeiser case ostensibly marked a fundamental change in the appropriate method for conducting an accounting of the profits that a defendant infringer must disgorge to a plaintiff patentee. The remedy of accounting of profits in patent cases, however, remains mired in definitional and conceptual confusion, which the Schmeiser case has brought to the forefront of disputes. The lack of clarity and certainty is harmful to all stakeholders in the patent system. This article makes three key contributions in the field of agricultural biotechnology patents. First, it exposes a largely unrecognized problem pertaining to the legal remedy of accounting of profits for patent infringement. To address this problem, the article corrects misunderstandings about recent court decisions pertaining to the accounting of profits remedy. Second, the article critically examines the discourse used to discuss accounting of profits, which includes sometimes inconsistent concepts, terms, and definitions. This article proposes strategies to facilitate definitional and conceptual coherence in order to establish a framework for future jurisprudence and scholarship on this topic. Finally, the article provides insights into the unsustainability of current trends in this area of law.