E-TIPS

Bristol Myers Squibb Canada (BMS Canada) has taken the unusual step of not launching its colorectal cancer drug Erbitux after it could not agree on a price with Canada's Patented Medicine Prices Review Board (PMPRB). The drug was approved by Health Canada nine months ago, but the PMPRB refused to allow BMS Canada to charge its proposed price because, it said, that price was too high. The Cancer Advocacy Coalition of Canada estimates that the drug, which is used to treat advanced cases of colorectal cancer, costs about Cdn$56,000 for a standard course of therapy.

Recently, in Pfizer Canada Inc v The Minister of Health and Ratiopharm Inc, 2006 FCA 214, the Canadian Federal Court of Appeal considered the issue whether an inventive selection existed in a patent which claimed the besylate salt of the cardiac drug amlodipine.

On June 26th, 2006 the US Supreme Court announced that it would not hear an appeal in the case of Federal Trade Commission v Schering-Plough Corporation.

On June 20, 2006, the Canadian Intellectual Property Office (CIPO) issued an Office Practice Notice entitled "Office Practice Regarding Fertilized Eggs, Stem Cells, Organs and Tissues", setting out that animals at any stage of development are not patentable subject matter under section 2 of the Canadian Patent Act, because they are considered to be higher life forms. The Practice Notice confirms CIPO's examination practice in light of the statutory requirements, as they have been interpreted in recent case law, including the "Harvard Mouse" case.

Google Earth, a 3D graphics application which provides images of the earth derived from aerial and satellite photography, has again stirred controversy. Satellite photos of Israeli Defence Forces bases are now available simply through a few clicks on Google Earth. Arguably, this information could be used by terrorist groups and this possibility has Israeli security officials seriously concerned.

As we approached the half-way point in 2006, the Federal and Ontario Privacy Commissioners were in the news.

Appropriation Art: A Coalition of Arts Professionals (Coalition) advocates what it terms a balanced approach to copyright reform, through an open letter to Minister Bev Oda, Minister of Canadian Heritage, and Minister Maxime Bernier, Minister of Industry. The Coalition is composed of over 600 artists, curators, directors, educators, writers, associations and organizations from the art sector.

The Conservative Government has announced its intention to revive wiretap legislation which died with the fall of the previous Liberal Government. Likely to be tabled later this year, the Bill will require telecommunications companies to add surveillance hardware and software to their networks.

On June 9, the Court of Appeals for the District of Columbia Circuit, by a 2-1 majority, affirmed a Federal Communications Commission (FCC) directive that VoIP (Voice over Internet Protocol) calls can be wiretapped.

On June 7, 2006, an English High Court granted an injunction to the German sportswear company, adidas-Salomon AG (adidas), allowing players to sport the company's distinctive three stripe design on their clothing during the upcoming Wimbledon Championships and the US Open.

US anti-drug-counterfeiting regulations drafted in 1999, which require wholesalers to track prescription drugs from source to pharmacist, will soon come into force.

For the first time, the New York Court of Appeals has recognized that electronic entry into the state can be sufficient to attract the jurisdiction of New York courts under that jurisdiction's long-arm statute. In Deutsche Bank Securities Inc v Montana Board of Investments, decided June 6, 2006, a $15 million bond purchase agreement was arranged between the defendant seller in Montana with the plaintiff buyer in New York entirely through the use of instant messaging and e-mail. The court unanimously held that a single business transaction is sufficient to attract jurisdiction where the defendant avails itself of the benefits of conducting business in New York State and should reasonably expect to defend its actions there.

The Globalization of the Regulatory Affairs Profession (PDF Format) By Gordon S. Jepson

Last week, the Supreme Court of Canada released its decisions in two trade-mark cases. In both, the plaintiffs asserted that their marks were "famous" and thus entitled to a special, broader, scope of protection.

Late last month, Qualcomm Inc (Qualcomm) launched an additional patent infringement action against its competitor Nokia, this time in the United Kingdom. In November 2005, Qualcomm's subsidiary, SnapTrack, commenced patent infringement litigation in the United States alleging Nokia infringed 11 of Qualcomm's and one of Snaptrack's US patents relating to the manufacture or sale of mobile devices supporting the GSM (Global System for Mobile Communications) cellular standard and seeking both an injunction and monetary damages from Nokia.

In response to the upcoming exceptional sale of radio spectrum this summer by the US Government called "Auction 66", M2Z Networks Inc (M2Z) has made an interesting proposal to the US Federal Communications Commission.

In Disney Enterprises Inc et al v Click Enterprises Inc and Evans, [2006] OJ No 1308, the Ontario Superior Court was asked to enforce a judgment issued in New York against an Ontario resident corporation, Click Enterprises Inc (Click), for online copyright infringement. Click had operated an Ontario-based web site that provided tools and support for users interesting in downloading movies. An action was launched in the District Court for the Southern District of New York by several movie studios and a default judgment obtained when Click did not defend. The plaintiffs then brought then brought an action before the Ontario Superior Court to enforce the New York State judgment.

ISPs may have to enlarge their data warehouses if the US Attorney General has his way. During a recent closed door meeting, US Attorney General Alberto Gonzales and FBI Director Robert Mueller urged telecommunications representatives to store subscriber data information in their data banks and retain the data for two years, in order to assist law enforcement relating to both child pornography and terrorism.

The European Commission (EC) has stated that the forthcoming Community patent regulation will exclude computer programs from patentability. While the precise meaning of this statement is not yet clear, it represents a significant change in tone as the EC had said last year, following rejection of the Software Patent Directive, that the European Patent Office (EPO) would continue to grant software patents involving a "technical contribution". The regulation would be applied by and bind the EPO, which is not a Community body, and allow patents to be challenged on the basis of the European Patent Convention of 1973 (EPC) in the European Court of Justice.

In a much anticipated decision, the US Supreme Court has held that injunctions should not necessarily issue as a matter of course in patent cases.