tag:blogger.com,1999:blog-1454051731189268002.post7808346256588515586..comments2024-03-27T11:29:23.559-03:00Comments on Sufficient Description: Nova v Dow: The Legal BackgroundUnknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1454051731189268002.post-38075288532255477762023-03-16T07:58:28.735-03:002023-03-16T07:58:28.735-03:00I read Rivett's use of conventional seed as tu...I read Rivett's use of conventional seed as turning on the evidence, not as being a matter of principle. Rivett was the first case on point after Schmeiser, and the “could and would” approach had not been developed. Neither party focused on how to construct the but for world. Monsanto’s main argument was that Schmeiser was restricted to an “innocent infringer” context, so the differential profit approach did not apply at all, and Rivett should therefore be required to disgorge his entire accounting profit. (Recall that the major issue in Schmeiser, even at the SCC, was whether Schmeiser as an “innocent” user had “used” the invention; the differential profit approach was only a couple of paragraphs.) Rivett’s argument was not primarily addressed to the but for hypothetical either: his main argument was as to the nature of his deductible costs. He argued that he should have been credited for his labour and expertise, and that if that was done, he had no profits to disgorge: FC [35].<br /> <br />With that said, Zinn J in Rivett did apply the differential profit approach and he did hold that the market availability of conventional seed was not determinative of its use as a comparator. It is also true that Rivett failed to establish what he would actually have done but for the infringement; he seems to have essentially assumed that the appropriate comparator was conventional soybean, which he did also grow, presumably in reliance on Schmeiser. (The fact that conventional soybean was unavailable was elicited only in cross-examination.)<br />Monsanto argued that since conventional soybean was unavailable, Rivett should be required to disgorge his entire accounting profit, without any deduction. It is perfectly clear that this would not properly apportion the profit; as the Federal Court [59] pointed out [59], this would be tantamount to saying that but for the infringement, Rivett would have left his fields fallow, which is clearly unreasonable. As the differential profit approach ultimately developed, it became clear that the onus lay on the infringer to establish the available of the non-infringing alternative, and no doubt Rivett would have have constructed his “but for” more carefully if he had the benefit of the “could and would” line of cases. Given that conventional soybean was unavailable, the proper “but for” comparator would probably have been corn or wheat, which Rivett also grew. But in the circumstances where the nuances of the doctrine were developing, and the major issue was whether the differential profit approach applied at all, it would have very harsh to require disgorgement of the full profits on the basis that Rivett had failed to discharge that onus. Keep in mind that this wasn’t a situation where conventional seed was unrealistic because there was no market for it: Rivett actually grew conventional seed as well, he just happened not to have it in enough quantity for his whole crop. The more structured “could and would” test, which made that onus clear, was only developed in subsequent cases, involving more sophisticated defendants. Moreover, as the Court of Appeal pointed out, it was Monsanto’s own evidence that the profit differential was 18%. In the context of an individual defendant developing a new point of law, it is not surprising that the court chose to do substantial justice on the facts rather than holding the defendant to the strict burden of proof. So the reason conventional seed was used even though not actually available is that Monsanto should not be permitted to take advantage of the fact that Rivett had not strictly carried its burden in order to extract a disgorgement that was undoubtedly excessive, when Monsanto’s own evidence established a more appropriate disgorgement.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-12031298327264367562023-03-15T22:56:15.250-03:002023-03-15T22:56:15.250-03:00Thanks for this discussion. How do you reconcile y...Thanks for this discussion. How do you reconcile your 'but for' discussion with Rivett, where it was found at trial that the defendant did not have conventional soybeans available: "he had no choice but to plant the ROUNDUP READY soybean seed as there were no conventional soybeans available at the local co-op or from the one local farmer whom he asked." Is it still appropriate to compare the actual profits with the profits using a conventional soybean when the defendant could not have used them?Anonymousnoreply@blogger.com