On August 30, 2010, India withdrew for 60 days its threat to ban BlackBerry Services for 60 days, following RIM’s promise to give Indian law enforcement agencies “lawful access” to the BBMs. India asserted that it would implement RIM’s proposed solutions immediately, and that it will negotiate further with RIM until it reaches a final decision.

India’s expressed concern is that BBMs could play a key role in the planning and executing of terrorist attacks and in contributing to other threats to national security, a concern heightened in the wake of the 2008 terrorist attacks in Mumbai, in its present battling insurgencies in Kashmir, and in anticipation of next month’s Commonwealth Games in Delhi.

India said that it also plans to issue notices to Google and online telecommunications provider Skype to make communications over their respective systems available to law enforcement agencies.

As previously reported in E-TIPS® (“Persian Gulf States Versus BlackBerry’s Network” Vol 9, No 3, August 11, 2010), RIM is continuing to negotiate with the United Arab Emirates to avoid a similar ban that is poised to take effect on October 11, 2010.

Follow this link for an article in the Washington Post:

http://tinyurl.com/27r6jb6

For a link to The Globe and Mail article, visit:

http://tinyurl.com/36byrrb

Summary by: Darren Hall

The patent at issue relates to a telephone line coupler that provides electrical isolation through the use of optical coupling. Hershkovitz had filed a disclaimer to narrow the scope of certain claims.

In the form of disclaimer, prescribed under Section 48 of the Patent Act, the patentee admits the specification is too broad and claims more than the inventor invented. The patentee then disclaims the claims that are too broad entirely, or in part. The disclaimer in this case followed the prescribed form. The patentee disclaimed “the entirety of“ each existing claim “with the exception of” the existing claim with added limitations. By adding limitations, the scope of a claim is narrowed. Limitations cannot extend the scope of a claim. Theoretically, a disclaimer that purported to increase the scope of a claim (that is, would broaden it) is invalid, but it is difficult to see how this could be done if the form is followed.

However, the Court asserted that if any elements included in the limitations are inventive, the claim is then “broadened” (despite the fact that the scope has been narrowed), and the disclaimer is therefore invalid. In this case, inventive elements were included in the limitations and so the disclaimer was found to be invalid. The Court asserted that the plaintiffs did not challenge the trial judge’s finding that the use of inventive elements “broadened” the scope of the claims. The plaintiffs, now seeking leave to appeal the Court’s decision to the Supreme Court of Canada, deny this.

The Court accepted that the addition of essential elements narrows a claim, but distinguished inventive and essential elements, despite the fact that the trial judge found that the added elements were essential. To most practitioners, the use of inventive elements to limit the scope of the claim strengthens the claim. The point of a disclaimer is often to narrow the claims so that the invention as claimed is inventive over newly discovered (or newly appreciated) prior art. It appears the Court understood this to be a form of “broadening”, however.

The Court went on to find that if a disclaimer is invalid, then the original claim stands, but is invalid, because of the admission by the patentee in the disclaimer form that it was too broad. Based on this holding, any attempt to narrow the scope of a claim by a disclaimer that introduces a limitation based on what is later determined to be an inventive element will invalidate the claim.

Unless and until the Supreme Court of Canada decides to alter this ruling, practitioners should use disclaimers with extreme caution.

For the full text of the decision of the Court, visit:

http://decisions.fca-caf.gc.ca/en/2010/2010fca190/2010fca190.html;

and for the trial court decision, see:

http://decisions.fct-cf.gc.ca/en/2009/2009fc256/2009fc256.html

For a detailed commentary, visit:

http://canadapatentblog.com/?p=59

Summary by: Tom Feather

The recent CRTC decision was in response to an order made by the Canadian Cabinet that the CRTC reconsider its original December 2008 decision with a particular focus on the impact that speed matching requirements would have on competition, investment and development (see E-TIPS® “Canadian Cabinet Reviews Two CRTC Telecommunications Rulings” February 10, 2010, Vol 8, No 16). The CRTC conducted a public hearing and determined that mandatory matching speed access was required to allow independent ISPs to compete with larger providers. To address the concern that speed matching requirements create a disincentive to invest in faster networks, the CRTC allowed larger ISPs to charge a 10-per-cent premium over their costs for the use of their Internet access services.

On August 31, 2010, the CRTC ordered large telecom providers to allocate over $700-million in deferred payments between rebates for urban phone consumers and rural investment. The deferral accounts were created in 2002 when the CRTC froze rates charged to urban customers to prevent large telecom providers from using rates to squeeze out smaller providers.

The CRTC ordered that $310.8 million be allocated to urban consumer rebates and $421.9 million be used to deploy DSL-based broadband (high-speed) Internet service to 287 rural communities across Canada. The decision brings to a close the debate as to how the deferral accounts should be allocated, with consumer groups asking that the accounts be returned to consumers and telecom providers asking for free rein to invest the entire funds.

For the CRTC News Release of the speed matching requirement decision, see:

http://www.crtc.gc.ca/eng/com100/2010/r100830.htm

For the CRTC News Release of the allocation of deferral accounts funds, visit:

http://www.crtc.gc.ca/eng/archive/2009/lt090925a.htm

Summary by: Adam Lis

A spokesman for the Interior Minister, Thomas de Maizière, said that the proposed law would allow recruiters to search job networking sites such as LinkedIn and the web for whatever information is publically available. However, the law would prohibit recruiters from using social networking sites like Facebook in gathering information about candidates. The Minister also said that the proposed law would make it illegal for recruiters to add prospective employees as friends on Facebook.

Some commentators suggest that the legislation is a reaction to Germany’s latest scandals which have left Germans wanting to vigorously defend their privacy—events such as employees being unknowingly video-taped and bank data being intercepted by hackers. The German government has recently investigated Google and iPhone, respectively, regarding privacy issues concerning their data collection and retention policies .

The proposed law received approval in August by the Cabinet and is now awaiting parliamentary discussion and approval. However, the Minister has admitted that the government faces a challenge in enacting the legislation.

For several news reports, follow these links:

http://tinyurl.com/36obpmj;

http://tinyurl.com/2u2t5es; and

http://www.physorg.com/news201952763.html

Summary by: Cindy Vergara

Black alleges that press releases and reports issued by the defendants contained defamatory statements that were downloaded, read and republished in Ontario by several newspapers and damaged his reputation in Ontario. The defendants are primarily non-residents of Ontario and they moved to stay the actions on the ground that Ontario did not have jurisdiction, or that Ontario was not the convenient forum, the more appropriate forum being either New York or Illinois. The Motion Judge disagreed and dismissed the defendants’ motion.

The Ontario Court of Appeal dismissed the appeal, finding that in addition to Conrad Black’s many connections to Ontario, the defendants targeted and directed their online statements to Ontario. The press releases posted on the Internet specifically provide contact information for Canadian media. The contact information for Canadian media clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond. Finally, the Ontario Court of Appeal concluded that it would be unfair to prevent Conrad Black from bringing the libel suits in Ontario because of his strong connections to the province.

For the full text of the decision Black v Breeden 2010 ONCA 547, visit:

http://www.canlii.org/en/on/onca/doc/2010/2010onca547/2010onca547.html

Summary by: Oren Weichenberg

Although the incident had previously been reported, Lynn was the first US government official to publically confirm the incident. Mr. Lynn reported that the breach was by a foreign intelligence agency, but did not confirm or deny initial speculation that the breach originated in Russia.

As a result of the incident, the US Department of Defense has reorganized the military’s information defenses, creating in May, 2010 Cyber Command, a military forces sub-unified command subordinate to the United States Strategic Command.

Although Mr Lynn’s article confirmed the military network breach, the intended focus of the article was to raise awareness of cyber threats to military intelligence and to advocate for a larger Pentagon role in providing cyber defense.

For the text of William Lynn’s article, see:

http://tinyurl.com/2wcbfxe

For further reporting, see the following article from The New York Times:

http://tinyurl.com/26usju3

For a blog entry to the effect that the breach may not be as severe as Lynn suggests, visit:

http://tinyurl.com/2523×6k

Summary by: Adam Lis

An important aspect of the practices under investigation has been the essential role that computer-directed trading plays in new trading practices and patterns. Only now has it emerged in the public media that not only have computer programs been used for high-frequency trading, but often such trading is being used to both buy and sell the same shares within micro-seconds. This practice of “quote stuffing”, according to some observers, has been used as a tactic by firms to distract rival trading firms from other strategies they are using. Also, investors could think that a sudden jump in trading volume was a sign of increased liquidity whereas, in fact, the mutually cancelling buy and sell orders reflect no real market shift whatever.

As further practices of this type emerge from the obscurity of brokers’ backrooms into the full light of day, some observers are voicing concern of the effect this will have on investors’ confidence in the markets and whether the so-called “average investor” will gradually begin to feel that the trading of equities is a rigged game.

For an article by the Reuters news agency, follow this link:

http://www.reuters.com/article/idUSTRE6812ZS20100902

Summary by: Richard Potter

The decision reflects the growing use of “virtual visitation” in custody arrangements, that is, the use of electronic communication such as e-mail, instant messaging or video conferencing to allow a parent to communicate with his or her children.

Six US states – Utah, Wisconsin, Texas, Florida, North Carolina, and Illinois – have passed legislation that gives judges the power to include electronic communications in parental visitation arrangements. Wisconsin’s legislation is unique, in that it permits electronic communication to be used only to supplement, rather than to substitute for, face-to-face visitation. Also, the Wisconsin law does not permit the court to take into account the availability of electronic communication to support relocation of the primary custodial parent.

Critics of virtual visitation fear that electronic communication will be used as a substitute for face-to-face visitation. By contrast, proponents emphasize that virtual visitation gives non-custodial parents a role in the daily lives of their children.

For a news report of the case, see:

http://tinyurl.com/23wqnlr

For a discussion of the history of virtual visitation and its positive effect in the US, follow this link to “Virtual Parents: How Virtual Visitation Legislation Is Shaping the Future of Custody Law” in 11 Journal of Law and Family Studies No 1 (2008).

Summary by: Adam Lis

The FCA held that the conditions for a selection patent set out in the IG Farbenindustrie case do not constitute an independent ground of invalidity upon which to attack a patent, but rather serve to characterize the patent and inform the analysis for the other grounds of invalidity set out in the Patent Act. It was held that the Trial Judge erroneously applied the selection criteria as an independent ground of invalidity and that this tainted his reasoning as to the other grounds of invalidity, namely novelty, obviousness, double patenting, sufficiency and utility. The FCA therefore reconsidered each of these latter grounds of invalidity and the ‘113 Patent was held to be valid on each of these grounds. However, since there were insufficient facts to rule on the issues of sufficiency and utility, these issues were sent back to the Trial Division for redetermination.

The decision provides guidance how the selection criteria should inform the invalidity analysis for certain grounds of invalidity. With respect to a selection patent that selects a compound from a previously claimed genus, these grounds (anticipation, obviousness, double patenting, utility, and sufficiency) are discussed at more depth in a version of this mini-article that can be accessed by clicking on this link and scrolling down to the fourth paragraph.

The FCA’s analysis clarifies the law with respect to selection patents and provides guidance both to those drafting selection patents and to those attempting to invalidate them.

For the full text of the reasons for judgment, visit

http://decisions.fca-caf.gc.ca/en/2010/2010fca197/2010fca197.html

Summary by: Michael Migus

Golden Hour Data Systems Inc (Plaintiff) patented a computer system that was used for emergency medical transport. Softech LLC (a producer of flight dispatch software) and emsCharts Inc (a maker of web-based medical charting software) (collectively, Defendants) formed a strategic partnership in which each contributed components to a software package. The components would later be packaged and sold as a set, which directly infringed upon the Plaintiff’s patent. The Plaintiff sued both Defendants for joint infringement of its patent.

In a 2-1 majority ruling, the Court reversed the finding of the court below, and held that because it was not proved that either company was the “mastermind” behind the patent infringement, neither had “control and direction” over the entire infringing process, and liability could therefore be found against neither of the Defendants.

For the reasons for judgment in the Golden Hour case, follow this link.

Summary by: Cindy Vergara