Foulis initially studied surgery at the University of Glasgow but abandoned that because of ill health, turning to engineering. Deciding to relocate to North America after the death of his first wife, Foulis was on his way to Ohio when rough weather forced his boat to find safe harbour on Nova Scotia’s South Shore. Finding that Nova Scotia was to his liking, for several years Foulis earned his living as a portrait painter and teacher in Halifax.

Moving to Saint John NB, he took up the post of Deputy Land Surveyor and worked as a civil engineer. His interests and abilities ranged from starting New Brunswick’s first iron foundry, to establishing a school of fine arts, to building several early steamboats and the first Saint John harbour ferry. Also credited with inventing an apparatus to transform coal to an illuminating gas, he was even said to have invented an electric dynamo.

One night, while walking home in a dense fog, as he approached his house, Foulis heard his daughter playing the piano but noticed that it was the very lowest notes which he could hear most clearly. Although lighthouses were of great benefit to mariners, they were naturally of no help whatever during bad weather conditions, whereas coded sound signals from the deep notes of a fog-horn could warn of the presence of rocks, even from a great distance.

In 1853, Foulis presented his plans to the Lighthouse Commissioners of the New Brunswick Provincial Assembly for a steam fog-horn in Saint John Harbour. Delays ensued, but finally, in 1859 Foulis’ fog-horn was installed – the first such installation anywhere in the world.

Confirming this claim in 1864, the New Brunswick legislature passed a resolution endorsing Foulis as first inventor. However, the invention had been patented by an America named Daboll who realized its financial potential. Foulis, on the other hand, died in poverty in Saint John in 1866.

Described by the Dictionary of Canadian Biography as “truly a man of great genius”, perhaps if he had been in a more supportive environment, Foulis would have achieved greater success. In retrospect, it seems that Foulis would likely have benefited from an early consultation with a patent attorney.

Summary by: Richard Potter

Bill C-11, also known as the Copyright Modernization Act, was tabled at report stage and for its Third Reading in Parliament this past Monday and Tuesday. From the Hansard reports from Monday’s debates, it appears that the Government is largely resisting the Opposition parties’ calls for amendments to the bill. Most of the comments from the Opposition related to the bill’s digital locking provisions and the fair-use provisions, particularly regarding the exception for educational uses.

There was also debate on how specific the statute should be regarding some provisions, whether more or fewer provisions should be contained in Regulations, and whether generality in the legislation would leave much for the courts to sort out later.

A full report will follow in the next issue of E-TIPS®.

Here is a link to Bill C-11 in its current state:

http://tinyurl.com/63dzmlk

Summary by: James Kosa

Currently, the Telecommunications Act limits the extent of foreign ownership to 20% of the carrier itself and to 33.5% of the carrier’s holding company, and permits the CRTC to review such arrangements to ensure that they are not, in fact, controlled by foreign entities.

In 2008, in order to spur competition in the mobile telecoms sector, the relevant federal department, Industry Canada, set aside portions of Canada’s wireless spectrum for AWS Entrants. Since then, mobile wireless prices have fallen by more than 10%. The proposed amendments are expected to advance this trend by encouraging foreign investment, and enhancing the competitive position of AWS Entrants in relation to other carriers in auctions for wireless spectrum licences.

The government’s goal is to enact the proposed amendments by the end of 2012, in advance of the upcoming 700 MHz wireless spectrum auction in the first half of 2013 and the 2500 MHz auction in 2014. It will be interesting to see whether this deadline can in fact be attained.

For a link to the proposed legislation, visit:

http://tinyurl.com/89uot8q; and

For a link to an Industry Canada policy document regarding the upcoming mobile spectrum auctions, see:

http://tinyurl.com/6togjpv

Summary by: Darren Hall

However, after considering the content of the specific e-mails at issue in this case, the Court ruled that the parties did not intend to be contractually bound. In reaching its decision, the Court set aside the motion judge’s finding that a binding contract had been created because the e-mails contained the essential terms of the sale. Instead, the Court decided that the e-mail exchanges were negotiations rather than a contract, as the emails referred to a formal contract being prepared, and therefore the parties did not intend to be contractually bound until a formal contract was prepared and signed. Of significance, the Court was of the view that the law should presume against any intent to create a binding contract when e-mails are rapidly exchanged back and forth.

Also considered was whether the signature requirements of the Statute of Frauds and the Electronic Transactions Act were met in the e-mail exchange. The defendant argued that her name at the end of her e-mails did not constitute her signature. The Court discussed various factors that would influence whether the signature requirement has been met, but decided not to rule on the issue since it had already decided that there was no contract based on a lack of intent to form a binding agreement.

Summary by: Adam Lis

Cloud service providers (CSPs) often maintain large networks of data centres, and because they provide their services over the Internet, there is no requirement that these data centres be located within the same geographic area or jurisdiction. Instead, the physical locations of these data centres are selected by a number of other factors such as the cost of utilities and a cool local climate. As a result, a single cloud service can exist as a network of several data centres, each in a different country. In order to ensure the customer’s resources are available on request and without delay, CSPs regularly shift or transfer customer information among these data centres. Not surprisingly, because different jurisdictions carry varying degrees of privacy and data protection standards, a customer’s information may not receive the level of protection that the customer requires or even thinks it has.

The Report recommends that customers obtain a list from its CSP of the locations of its data centres. Additionally, the customer should state clearly in which jurisdictions, if any, the customer’s information is not to be processed or stored, and what specific functions the CSP is allowed to carry out. The Report also recommends that CSPs be more transparent about their practices and allow for customers or a trusted third party to regularly monitor where information has been processed and stored.

For the full text of the Report, visit:

http://tinyurl.com/d6dlata

Summary by: Thomas Wong

Precision Door & Gate Service Ltd (Precision Door) used its business name in association with door and gate installation and advertised the name on invoices, business cards, service trucks and in the Vancouver Yellow Pages since 2000.

Precision Holdings of Brevard Inc (Precision Holdings), a US franchisor in the same line of business, applied for the Canadian trade-marks PRECISION DOOR SERVICE, PRECISION and PRECISION OVERHEAD GARAGE DOOR in 2002 and registered the trade-marks in 2009. Precision Holdings performed a search at the time of its applications, but did not become aware of Precision Door Ltd.

Precision Door applied for registration of PRECISION DOOR & GATE SERVICE LTD in design form in 2005, and the Canadian Trade-marks Office rejected the application because that mark would be confusing with Precision Holdings’ registered trade-marks. Precision Door then brought an application to expunge Precision Holdings’ registration on the basis that they were confusing with its own, alleging that it was entitled to the trade-mark on the basis of prior use. Precision Holdings in response asserted that Precision Door had acquiesced in allowing it (Precision Holdings) to register its trade-marks.

Justice O’Reilly granted Precision Door’s application for expungement. He had no difficulty finding that the trade-marks would cause confusion because of the degree of resemblance between the trade-marks and the identical trade and nature of wares and services, despite the lack of inherent distinctiveness of the trade-marks.

He also rejected the argument that Precision Door had acquiesced in the registration, finding that there was no evidence to show Precision Door did not intend to enforce its rights and that Precision Holdings relied on this belief to its detriment. The Court concluded that Precision Door was entitled to the registration, and that its delay in registering its trade-mark was no basis for denying it.

Although the result is unsurprising, the case underscores how prior local use can interfere with expansion of a franchise.

Summary by: Darren Hall

According to the author, the CR Article is the result of discussions with Facebook, security experts, privacy lawyers, app developers, and victims of security and privacy abuse. Many users may be unaware of the extent to which online services collect information. For instance, Facebook currently holds a database of biometric data by using facial recognition technology to scan posted photographs. The software then creates a unique numerical identifier for each face based on facial features such as the distance between an individual’s eyes and other parameters.

The purpose of this database flows from a feature of Facebook that was released late in 2010: Tag Suggest. Tag Suggest is designed to recognize faces in posted photos and to suggest that the users that have been recognized by the program be “tagged”. Such users may un-tag themselves and also opt out of this Tag Suggest feature. However, Facebook still retains the user’s facial biometric data whether or not the user opts out of the feature.

Facebook also collects information relating to the web sites that individuals visit. Web sites that contain a “Like”, “Recommendations”, “Bookmark” or similar feature report to the relevant online service the date and time the individual was on the web site, together with that individual’s IP address. This information is collected by Facebook whether or not that individual logs on to Facebook or even owns a Facebook account (emphasis added).

Users may also be surprised to learn that Facebook retains information that users believe to have been deleted and that unless a user’s “friends” take action to block access, simply using a Facebook app will trigger the collection of information from those friends. Apparently, says the CR Article, only 37 percent of Facebook users have used the privacy settings to adjust the degree of access apps have to their information.

For the full text of the CR Report, see:

http://tinyurl.com/7yc6e7n

Summary by: Thomas Wong

The result was the invention of the game of basketball, which made its debut in December, 1891. Not unlike several other inventions in this series, many sports fans and historians, whether they be Canadians or not, may be surprised to learn that this game was invented by a Canadian.

Born and raised in Lanark County in Eastern Ontario, west of Ottawa, Naismith was a successful athlete at the university level, despite his relatively small frame. He excelled in football, soccer and lacrosse and when he graduated from McGill University, Naismith was awarded the Wicksteed Gold Medal as the top athlete in his senior class. He remained at McGill to study for a three-year theology degree and was the silver medalist on graduation in 1890.

Moving to Springfield to teach, Naismith developed the structure and rules of basketball under a deadline imposed by the head of Physical Education at the YMCA institution. The task: in 14 days, devise an indoor game that would keep athletes in shape over the winter, would be fair regardless of physique and would not be too rough. The version he presented to the world in late 1891 used nine players on each team, and the goals into which the ball was shot were not hoops, as they later became, but were initially peach baskets!

Moving in 1895 to Denver, Naismith remained active in the YMCA as Director of Physical Education while attending the University of Colorado and attaining a medical degree. He then spent the next several decades in various posts at the University of Kansas, including professor and university chaplain, basketball coach, and athletic director, and served in the US Army during World War I.

Throughout the first half of the 20th Century basketball continued to thrive, and when it was welcomed into the pantheon of modern Olympic sports at the 1936 Berlin Olympics, Dr Naismith had the thrill of officiating at the opening tip-off of the basketball tournament. Interestingly, the result of that first tournament was a ranking of: (1) the USA; (2) Canada; and (3) Mexico. Women’s basketball first became an Olympic sport at the 1976 Montreal Summer Olympics.

Looking back on the birth of basketball may produce mixed emotions for some Canadian observers of sport. Although it has never attained the stature and popularity of hockey or lacrosse in Canada, basketball is widely played in Canada and around the world at secondary schools and universities – and has become a successful and financially rewarding professional sport. And it should be noted that, as individuals, Canadians are capable of excellence in the sport. Steve Nash, one of the leading and most valuable players in the National Basketball Association (NBA) is a Canadian, from Victoria, BC.

Summary by: Richard Potter

The Court held that iiNet had no direct power or ability to prevent a subscriber from using BitTorrent software to download media illegally. In addition, iiNet’s refusal to terminate subscriber accounts upon receiving a notice alleging infringement did not amount to authorization. On this point the Court held that iiNet’s unwillingness to act was not due to indifference to the copyright holder’s rights, but rather iiNet was not willing to commit to the drastic measure of terminating an account based only on information from the copyright holder. The Court went on to say that, regardless of the actual quality of evidence gathered and documented in the notices to iiNet, infringement is not a straightforward “yes” or “no” question and must be determined by a Court. Thus, iiNet was under no obligation to act after receiving these notices since they only amounted to allegations of infringement and not actual infringement.

In Canada, Bill C-11, which was introduced on September 29, 2011, contains its own “notice and notice” regime. The bill requires an ISP that receives a notice conforming to the requirements of Bill C-11 to send the notice to the alleged infringer and keep records that identify the subscriber for six months from the day the ISP received the notice.

For more commentary:

http://tinyurl.com/84sfwxf; and

http://tinyurl.com/88adaun

Summary by: Thomas Wong

The changes exempt from the scope of section 5 of the Regulations administrative drug submissions filed by licensees that cross-reference a licensor’s drug submission. In such instances, the date that the patent register will be “frozen” is the date of the filing of the licensor’s submission.

The update is effective as of April 16, 2012. Accordingly, licensees who filed cross-referenced administrative drug submissions prior to this date will still be subject to the provisions of Section 5 of the Regulations.

The update further exempts from Section 5 administrative drug submissions for a change in the manufacturer’s name or the product name, which are filed pursuant to Health Canada’s Changes in Manufacturer’s Name and/or Product Name Policy.

For the updated Guidance Document, see:

http://tinyurl.com/7g9vdz8

Summary by: Michael Migus