E-TIPS

Kraft Canada Inc (Kraft) and Euro-Excellence Inc (Euro) have finally settled a long-standing dispute over secondary or "grey market" importing.

In Doe 1 et al v AOL LLC, the US Court of Appeals for the Ninth Circuit (Court) has held that Californian AOL members can proceed with a class action law suit against AOL in California despite a forum selection clause to the contrary in AOL's Member Agreement. The decision reversed a District Court finding that California residents would be required by the Member Agreement to use Virginia courts and subject themselves to the laws of Virginia, which do not permit class action lawsuits.

In November 2008, Ms Crystal Bell, an esthetician in Kelowna, British Columbia, checked her Facebook inbox only to discover that her employment had been terminated. Ms Bell's firing via Facebook has generated a vigorous debate as to whether it is ethical or justifiable in law to fire an employee through public online communication.

In a non-precedential decision, Ex parte Cornea-Hasegan, the Board of Patent Appeals and Interferences (Board) of the US Patent and Trademark Office (USPTO) has found that the test for patentability established in In Re Bilski applies to manufactures and machines as well as processes.

Extension and Revisions to the Canada-US Patent Prosecution Highway We previously reported on the establishment of a one-year trial pilot program, a joint cooperative initiative between the United States Patent and Trademark Office (USPTO) and Canadian Intellectual Property Office (CIPO) called the Patent Prosecution Highway (PPH). (See E-TIPS®, Vol 6, No 13, December 19, 2007).

Drug, Food and Device Regulation in Canada 2008: The Year in Review (PDF) By Gordon S. Jepson

In separate reports, both the Competition Bureau of Canada and the Directorate General for Competition for the European Commission have called for increased competition in the pharmaceutical sector.

In a reference from the English Court of Appeal, the European Court of Justice (ECJ), in the case Intel Corporation Inc v CPM United Kingdom Ltd, has found that the owner of a unique and well-known trade-mark cannot automatically prevent others from using the same or similar mark for dissimilar goods.

On December 3, 2008, UK company Telnic launched the new domain name, . According to the CEO of Telnic, the birth of the .tel domain is "the most significant innovation in the domain name system since the advent of .com". The use of .tel URLs will be unconventional; a .tel website will be used specifically as an online address book.

Proposed Amendments to the Patent Rules The Canadian Intellectual Property Office (CIPO) is accepting comments from the public until January 5, 2009 on proposed amendments to the Patent Rules

Passport Canada, an agency of the Foreign Affairs Department, processed more than 3.6 million passport applications in 2006-2007 and is responsible for approximately 30 million passports. On December 4, 2008, Canada's Privacy Commissioner released an audit of Passport Canada's operations (Report). The Report highlighted problems in how personal information is collected, stored, used and discarded by passport officials.

Until now, although the large telephone service providers have been required to rent out their networks to smaller providers, the requirement applied only to older infrastructure, usually contained in the big companies' older, centralized buildings. This "level-the-playing-field" requirement did not apply to the newer equipment being placed by the big providers in so-called "streetside cabinets". On December 11, 2008, the Canadian Radio-television and Telecommunications Commission (CRTC) ruled that the big providers must offer to smaller wholesalers comparable broadband access across the product-and-service line.

In separate reports, both the Competition Bureau of Canada and the Directorate General for Competition for the European Commission have called for increased competition in the pharmaceutical sector. The report published by the Competition Bureau of Canada entitled, Benefiting from Generic Drug Competition in Canada: The Way Forward (Canadian Report), focused on methods to increase competition between generic drugs, and suggested that changing the way public and private payers pay for generic drugs could save Canadians more than $800 million annually.

In April 2008, the Canadian Association of Independent Providers (CAIP) complained to the Canadian Radio-television and Telecommunications Commission (CRTC) that Bell Canada (Bell) was slowing certain Internet traffic on its leased network space.

Three recent incidents show how social networking web sites are being used in ways that can result in significant legal consequences.

In a unanimous decision, the House of Lords overruled the English Court of Appeal, which was found to have incorrectly formulated the test for obviousness of a patent claim. The claim at issue was directed to a stent coated with taxol for treating or preventing restenosis.

Electronic prescriptions (e-prescriptions) will eventually replace the traditional physician's prescription pad as doctors electronically transmit their prescription orders to a pharmacy. E-prescriptions can reduce medication errors caused by illegible handwritten prescriptions, contribute to the development of electronic health records and result in increased efficiency in health care.

As demonstrated by two recent developments, it is becoming harder to keep track of how much data is being generated and kept by whom when it comes to border crossings. Although intergovernmental talks continue, it appears that in 2009 the US Transportation Security Administration will institute the collection of personal information on airline passengers on flights passing through US airspace, even if the flights never touch US soil.

The Supreme Court of Canada has ruled in Apotex Inc v Sanofi-Synthelabo Canada Inc, 2008 SCC 61 (Apotex) that the principle of selection patents is acceptable. In the chemical field, a selection patent is one that claims a selected compound or group of compounds chosen from a larger group of compounds claimed in a previous genus patent. The Court also refined the tests of anticipation and obviousness in patent law.

According to Industry Canada, spam e-mails may comprise 80% of e-mail traffic and they result in annual costs to individuals and businesses of approximately $100 billion globally. Unlike the Unites States, Australia and many European countries, Canada does not have any anti-spam legislation. Recently, interesting data has been collected showing the impact of spam networks.