WASHINGTON (Updated Jan. 27, 11:15 a.m. ET) — Dow Chemical Co. has won an appeals court ruling upholding a 2010 verdict totaling $76 million against Nova Chemicals Corp. in a patent conflict over enhanced polyethylene resins.
A three-judge panel in the U.S. Court of Appeals in
In a prepared statement, Dow officials said Jan. 25 that the firm “will now turn its attention to recovering substantial additional damages for Nova's continued infringement in the
Dow officials added that the firm is “very pleased” with the decision and that it “affirms Dow's Jury trial win against Nova in every respect.”
In a Jan. 25 e-mail, Nova spokesman Pace Markowitz said that his firm is “disappointed with the outcome of the case.”
“This was a split decision and one of the judges on the panel agreed with our arguments,” he added. “We are reviewing the decision to determine our next steps.”
The patents involved in the suit describe a new kind of plastic that is stronger than conventional plastics, which allow using thinner films made with less plastic for the same purpose. The original judgment against Nova was made by a jury in U.S. District Court in
The patents involved in the case expired in October, so current and future damages awarded to Dow will be based on the period from 2010 until the expiration date.
Nova argued before the appeals court that its material had different mechanical properties than Dow's did. Nova also questioned Dow's suit, claiming that Dow had transferred ownership of the patents to its Dow Global Technologies Inc. unit.
Dow officials also said that the decision “confirms Dow's position from the beginning of this dispute: Dow's patents for the production of Elite-brand enhanced polyethylene resins are valid and enforceable, and Nova has been infringing on Dow's rights.”
In a Jan. 27 e-mail, Dow spokesman Bob Plishka said that Dow “anticipates these (additional) damages will be in the tens of millions of dollars.”
“Dow will also pursue a claim of willful infringement against NOVA and seek treble damages and reimbursement of attorneys' fees and other costs incurred by Dow in this litigation,” he said.
Dow also will seek damages and injunctive relief against Nova for its manufacture of infringing product in
Industry sources said that more than half of the output of an 850 million pound-capacity PE line operated by Nova in
Plishka declined to provide specific production numbers for Dow Elite, but he said the product line “comprises a substantial portion of our portfolio of highest performing resins.”
Elite resins “are patent protected and offer unique properties that no one else can offer,” Plishka added. “These are high performance materials that enjoy robust sales today and are growing.”
Nova's Markowitz confirmed Jan. 26 that his firm has continued to produce Surpass in Joffre. “The asserted patent expired on October 14, 2011 and Nova Chemicals has no restrictions on selling any grades of Surpass in the
Nova first commercialized Surpass in 2003. It's made via Nova's Advanced Sclairtech technology and has been used in film, rotational molding and thin wall injection molding applications.
A PE market veteran said that he believed part of the problem in the case was that Nova hired several researchers who previously had worked at Dow. Once there, they created specialty PE materials that were too close to their previous designs.
“There was some mix-up in their thinking pattern,” he said of researchers who moved from Dow to Nova. “They intended to do something new and do original research, but when you build a car at one place and then go build a car at another place, it still looks like a car.”
Single-site or metallocene PE accounts for 15-20 percent of LLDPE production both globally and in North America, according to the Chemical Market Resources consulting firm in
