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Federal Circuit Upholds $61.8 Million Verdict for Dow Chemical

By Dyanna Quizon, Esq. on January 27, 2012 | Last updated on March 21, 2019

As environmentally-conscious consumers, we always make sure to bring our reusable bags to the grocery store. Despite our save-the-Earth ways, plastic grocery bags are apparently big business - just ask Dow Chemical Co., winner of a $61.7 million verdict related to its plastic grocery bag inventions.

Upheld on appeal by the Federal Circuit Court of Appeals on Tuesday, the verdict was handed down against Nova Chemicals Corp. in 2010 because the Canadian company's "Surpass plastic" infringed two of Dow's patents on polymers that are thinner and stronger than conventional plastic.

In a 2-1 decision, the Federal Circuit found that the federal jury had substantial evidence to support its verdict, relying primarily on Dow's expert witness testimony. It also rejected Nova's claim that Dow lacked standing to bring the suit and that its patents were invalid.

In addition to the $76 million jury award, Dow is apparently going for Nova's jugular and will seek "substantial additional damages" for continued infringement since 2009, according to Bob Plishka, a spokesman for Dow.

However, the decision to uphold the lower court's ruling was not unanimous, with Judge Jimmie Reyna arguing that Dow lacked standing to bring suit against Nova due to patent-ownership issues.

Because of the panel's split in its decision, Nova may contemplate asking for a reconsideration of the panel's findings or request an en banc hearing of the court.

It may not be the end of the Dow vs. Nova legal fight, but in the battle between paper or plastic, we'll stick to reusable cloth.

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