E-TIPS

The Ponemon Institute and Symantec Corp recently released findings from a joint survey on employee data theft. A web-based survey was conducted in January 2009, involving over 900 US participants who had left an employer within the preceding 12 months. The survey results showed that 59 percent of ex-employees admit to stealing confidential company information, such as customer contact lists.

In the ongoing battle by brand name owners to impose liability on online auction sites for sales of fake goods, it appears that, at least in Europe, eBay is beginning to take steps to curb the activity, with some success.

The Offices of the Auditor General of Canada and of the Federal Privacy Commissioner have released concurrent reports on how well Canadian government institutions manage the identity information of Canadians which they collect.

British Columbia’s Minister of Public Safety and Solicitor General (Minister) recently announced that BC will introduce high-tech driver’s licences and BC identification cards (ID cards) to help combat fraud and identity theft. In addition to new and improved counterfeit-prevention and anti-tampering features, the driver’s licences and ID cards will utilize facial recognition technology. According to the Minister, the use of facial recognition technology has been reviewed for privacy implications and meets the requirements of the BC Freedom of Information and Protection of Privacy Act.

The Canadian government has recently confirmed an intention to introduce lawful access legislation that will likely include provisions requiring ISPs to grant access to the ISPs' communications systems by government authorities and police for the express purpose of monitoring the content of those communications.

In the preceding issue of E-TIPS® ("US [FTC] Continues to Battle Pharma Over Patent Settlement Agreements",Vol 7, No 6, February 11, 2009), we reported that the US Federal Trade Commission (FTC) initiated a lawsuit against Solvay Pharmaceuticals Inc (Solvay) and two generic manufacturers for entering into patent settlement agreements that would delay market entry of the generic versions of the drug ANDROGEL.

The Federal Court of Appeal in Apotex Inc v Pfizer Canada Inc, 2009 FCA 8 (Pfizer) has interpreted the scope of the "worth a try" test of obviousness adopted by the Supreme Court of Canada in Apotex Inc v Sanofi-Synthelabo Canada Inc, 2008 SCC 61 (Sanofi) (see "Supreme Court of Canada Rules Selection Patents are Acceptable and Refines Tests of Anticipation and Obviousness" E-TIPS®, Vol 7, No 11, November 19, 2008).

Impact of Social Networking Versus the Conventional Work Environment Four recent incidents have demonstrated how online postings on social network sites can raise serious concerns regarding the workplace and an organization's control over its information.

On February 4, 2009, the social networking web site Facebook changed its Terms of Service (TOS), including deleting a provision that allowed users to remove their content from the site at any time.

In Glenora Distillers International Ltd v The Scotch Whisky Association (2009 FCA 16), the Federal Court of Appeal (Court) set aside the decision of Justice Harrington (see “Federal Court Finds that ‘Glen’ Means Whisky is from Scotland,” E-TIPS ®, Vol 6, No 22, May 7, 2008) and directed the Registrar to register Glenora’s trade-mark, GLEN BRETON.

In a significant jurisdictional case, Re TS Tech USA Corp et al, the US Court of Appeals for the Federal Circuit (Court) has reversed the denial of a motion to transfer a patent infringement suit from the Eastern District of Texas to the Southern District of Ohio. In ordering the change of venue, the Court found that the District Court had made several errors in refusing the transfer and that Ohio would be a "clearly more convenient" forum than Texas.

On January 29, 2009, Bill C-6, the proposed Canada Consumer Product Safety Act, was given first reading in Parliament.

In April 2008, we reported that the New Zealand government had enacted the Copyright (New Technologies) Amendment Bill ("New Zealand Reforms Copyright Law", E-TIPS® Vol 6, No 21, April 23, 2008), which obliges ISPs to terminate accounts of repeat copyright infringers. The law, which is slated to come into force at the end of February 2009, is expected to be implemented by ISPs through a "graduated response" or a "three-strikes" system, such that after a few warnings to an alleged infringing user, the user's account would be closed for a period of time.

In 2008, we reported concerns that were voiced over a lack of public consultations and transparency in the negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) between Canada, the United States, European Union and other countries (see E-TIPS® "Concerns Voiced Over Broad Copyright Policing Powers Under ACTA", Vol 6, No 24, June 4, 2008 and "G8 Nations "ACTA Up", But Quietly", Vol 7, No 3, July 30, 2008). Under ACTA, member countries would cooperate to enforce intellectual property rights and infringers would be subject to criminal sanctions.

On January 30th, the Natural Health Products Directorate (NHPD) of the department of the federal government charged with supervising matters of health, Health Canada, introduced a new "Reconsideration Process".

In its latest attack on pharmaceutical patent settlement agreements, the US Federal Trade Commission (FTC) has initiated a lawsuit against branded pharmaceutical company Solvay Pharmaceuticals Inc (Solvay), and generic manufacturers Watson Pharmaceuticals Inc (Watson) and Par Pharmaceutical Companies Inc (Par), alleging that the three drug manufacturers entered into unlawful agreements to delay the market entry of generic versions of Solvay's testosterone-replacement drug, ANDROGEL.

Recently the Ponemon Institute, a US-based security research firm, released results of its fourth annual survey entitled "US Cost of a Data Breach Study" (Study) sponsored by PGP Corporation, a firm focusing on enterprise data protection. The Study examined the financial consequences of data breaches involving consumers' personally identifiable information. Forty-three organizations within 17 industry sectors were examined.

On January 6, 2009, Apple Inc announced that it was abandoning its Digital Rights Management (DRM) technology and deleting it from the songs it sells through iTunes. Its entire online catalogue is expected to be offered without DRM by the end of March, 2009.

Starting in January 2009, travellers from the 35 countries that participate in the US Visa Waiver Program (VWP), such as the UK, Australia, Germany and Japan, are required to register online with the US Department of Homeland Security before they leave for the United States. The VWP permits visitors from participating countries to travel to the US for less than 90 days without obtaining a visa. Previously this information was collected on a paper form that travellers filled out en route to the US. Now, however, the Electronic System for Travel Authorization (ESTA) requires visitors from VWP-participating countries to enter information online before departing for the US.

A number of administrative and technical updates have been issued by the Canadian Intellectual Property Office (CIPO) recently, some involving proposed regulatory changes on which comments are invited and some involving the coming into force of existing regulations.