Recent Insights

Federal Court of Appeal Clarifies Meaning of “Inventive Concept” for Obviousness and Application of “Obvious to Try” Federal Court of Appeal Clarifies Meaning of “Inventive Concept” for Obviousness and Application of “Obvi...

Patent
April 19, 2017April 19, 20172017-04-20
On April 11, 2017, in Bristol-Myers Squibb Canada Co v Teva Canada Limited (2017 FCA 76), the Federal Court of Appeal (FCA) clarified the test for assessing obviousness subsequent to the Supreme Court of Canada’s 2008 seminal decision on this test in Apotex Inc v Sanofi-Synthelabo Canada Inc, 2008 SCC 61 (Plavix 1).  In Plavix 1, the SCC elaborated on how to construe the “inventive concept of the claim” and adopted the “obvious to try” test, which, it noted, might be app
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-clarifies-meaning-of-%E2%80%9Cinventive-concept%E2%80%9D-for-obviousness-and

Federal Court of Appeal Upholds Interlocutory Injunction Against Defendants Selling Set-top Boxes Federal Court of Appeal Upholds Interlocutory Injunction Against Defendants Selling Set-top Boxes

Litigation
April 19, 2017April 19, 20172017-04-20
On March 20, 2017, the Federal Court of Appeal (FCA) dismissed an appeal of the Federal Court’s interlocutory injunction order against the defendants in Wesley (Mtlfreetvcom) v Bell Canada, 2017 FCA 55, affirming 2016 FC 612) from among other things, selling set-top boxes pre-loaded with applications for accessing free online streaming websites (previously reported by E-TIP
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-upholds-interlocutory-injunction-against-defendants-selling-settop

UK High Court Makes Precedential Finding on FRAND Royalty Rates UK High Court Makes Precedential Finding on FRAND Royalty Rates

Information Technology
April 19, 2017April 19, 20172017-04-20
Unwired Planet International v Huawei, [2017] EWHC 711, provided the UK High Court with its first opportunity to provide guidance on FRAND (which stands for Fair Reasonable and Non-Discriminatory) royalty rates. The decision is likely to have considerable impact on licensing negotiations in the Technology, Media and Telecom (TMT) sector.
Deeth Williams Wall http://www.dww.com/articles/uk-high-court-makes-precedential-finding-on-frand-royalty-rates

Search Engines Beware: Court Opens Door to Statutory Damages under Copyright Act Search Engines Beware: Court Opens Door to Statutory Damages under Copyright Act

Copyright
April 19, 2017April 19, 20172017-04-20
On April 6, 2017, the Ontario Superior Court of Justice (ONSC) in Trader v CarGurus, 2017 ONSC 1841, provided the first judicial interpretation of the term “information location tool” in s.41.27 of the Copyright Act, R.S.C. 1985, c. C-42 (the Act).
Deeth Williams Wall http://www.dww.com/articles/search-engines-beware-court-opens-door-to-statutory-damages-under-copyright-act

Appeal Allowed Where Federal Court Did Not Apply Mark to Mark Comparison in Confusion Analysis Appeal Allowed Where Federal Court Did Not Apply Mark to Mark Comparison in Confusion Analysis

Trademark and Copyright Litigation
April 19, 2017April 19, 20172017-04-20
On March 15, 2017, in Benjamin Moore & Co Limited v Home Hardware Stores Limited, 2017 FCA 53, the Federal Court of Appeal (FCA) found that the Federal Court (FC) failed to engage in a mark to mark comparison in assessing trademark confusion and therefore remitted the matter back to the FC for redetermination. 
Deeth Williams Wall http://www.dww.com/articles/appeal-allowed-where-federal-court-did-not-apply-mark-to-mark-comparison-confusion

Ontario Court of Appeal Dismisses Appeal from Summary Judgment in Copyright and Trademark Infringement Action Ontario Court of Appeal Dismisses Appeal from Summary Judgment in Copyright and Trademark Infringement Ac...

Trademark and Copyright Litigation
April 19, 2017April 19, 20172017-04-19
On March 27, 2017, in Boaden Catering Limited v Real Food for Real Kids Inc, 2017 ONCA 248, the Ontario Court of Appeal dismissed the plaintiff, Boaden Catering Limited’s (Boaden’s) appeal in its entirety, affirming the decision of the lower court (previously reported in E-TIPS® her
Deeth Williams Wall http://www.dww.com/articles/ontario-court-of-appeal-dismisses-appeal-from-summary-judgment-copyright-and-trademark

Events

September 15, 2017

Richard Austin will be a panelist during the 2017 Guide to Legal & Business Risk Management in Cloud and SaaS Based Environments event on September 15, 2017.  Richard will be presenting on a panel discussing: Cloud Computing Agreements: Tips, Tricks and Pitfalls

February 22, 2017

James Kosa will be speaking at the LES 2017 Kick-Off: Toronto Social Event & Evening Talk on "Ethical Negotiations - The Art of the Possible".

His discussion will explore a range of topics that include the evolution of the duty to contract in good faith, the intersection of contract law and public policy, and examples of ethical dilemmas in contract negotiations.

February 1, 2017

On February 1, 2017, Richard Austin presented "Consent in the time of big data" at the 14th Privacy & Data Security Compliance Forum.

A copy of the presentation is available here