E-TIPS

In Wansink v Telus Communications Inc (2007 FCA 21), the Federal Court of Appeal found that Telus' collection of its employees' voiceprints was permitted under the Personal Information Protection and Electronic Documents Act (PIPEDA).

Two new computer databases relating to human metabolism appear to represent important contributions to the field of bioinformatics and will likely have a significant impact on disease diagnosis and treatment.

For the past 20 years, daylight savings time (DST) in North America has come and gone uniformly and most Canadians have reset their clocks on the first Sunday in April and the last Sunday in October. Next month, however, this practice will change in Canada in order to give consistency with a change in US practice.

IBM Corporation (IBM), a recognized technological pioneer and one of the world's largest employers, has spoken out in favour of the Genetic Information Nondiscrimination Act of 2007, HR 493. The Bill, which aims to prohibit discrimination on the basis of genetic information regarding health insurance and employment, was introduced in the US House of Representatives in January and was then referred to the Congressional Education and Labor Committee for review.

Leave to appeal to the Supreme Court of Canada the decision of the Federal Court of Appeal in Pfizer Canada Inc v Canada (Minister of Health) and Ratiopharm Inc was recently denied. The case involved a rarely visited area of Canadian patent law – the validity of selection patents.

As part of an ongoing dispute between Fairmont Resort Properties Inc (FRP) and Fairmont Hotels Inc and Fairmont Hotels and Resorts Inc (collectively, FH), FRP brought an application under section 12 of the Canada Business Corporations Act (CBCA) asking the Director of Corporations Canada (CBCA Director) to order FH to change their corporate names because of the risk of confusion with FRP's name.

Apple Inc and Apple Corps Ltd issued a joint press release on February 5, 2007, announcing that the parties had entered into an agreement regarding the use of the name "apple" and the companies' apple logos. Disputes between the two companies over the names and logos have been going on for almost 30 years. Apple Corps Ltd, the guardian of the Beatles' music, first sued what was then Apple Computer Inc for trade-mark infringement in 1978. In 1981, the computer maker paid $80,000 and agreed not to enter the music business.

On December 22, 2006, the Organisation for Economic Co-operation and Development (OECD) issued a report on Canada's pharmaceutical pricing and reimbursement policies. The report is the first in a series of case studies describing and analyzing the pharmaceutical policies of selected OECD countries with a view to evaluating the impact of those policies.

With its much anticipated decision in MedImmune v Genentech, the US Supreme Court has paved the way for licensees to challenge the validity of the patents they license (for a summary of the issues in dispute see E-TIPS®, "Does a US Patent Licensee Have Standing to Invalidate its Licensor's Patent?" Vol 5, No 9, October 25, 2006).

It appears that a recent widespread data security breach will attract the attention of federal privacy officials in Canada. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) has filed a complaint with the Privacy Commissioner of Canada (Commissioner) under section 11 of the Personal Information Protection and Electronic Documents Act (PIPEDA) asking the Commissioner to investigate the security breach which was widely reported to have exposed personal information of customers of Winners Merchants International LP (Winners) in Canada.

Earlier this month, the US Court of Appeals for the Federal Circuit dismissed an appeal of a summary judgment decision involving Claim 6 of US Patent No. 5,336,691, owned by Ortho-McNeil Pharmaceutical Inc (Ortho), a claim for a combination of two known pain relievers, tramadol and acetaminophen at a ratio of "about 1:5".

Unless the Conservative Government creates new fair use or fair dealing provisions, proposed changes to the Canadian Copyright Act could make it illegal for consumers to record TV shows to view later at home, or copy music from their CDs to MP3 players.

When the small entity remedial provisions of Bill C-29 came into force on February 1, 2006, patent owners were given 12 months from that date to make any top-up payments to remedy underpaid fees (including payments mistakenly paid at a small entity rate).

Outsourcing and Other Cross-Border Data Transfers (PDF Format) By Jason M. Young

On December 12, 2006, the Ontario Legislature enacted legislation to amend the Consumer Protection Act, 2002 (Act). Included in the amendments is a prohibition on the advertising of an "internet gaming site" that is operated contrary to the Criminal Code. For the purposes of the section stating the prohibition, advertising means advertising that originates in Ontario or is primarily intended for Ontario residents and includes providing a link to an Internet gaming site for the purpose of promoting use of the site.

For the past four years, the US Department of Homeland Security (DHS) has been secretly assigning computer-generated scores to US domestic and international travellers through what is called an Automated Targeting System (ATS). These scores are an attempt to measure the risk posed by each traveller for committing terrorist or criminal activities.

The Federal Court of Canada recently addressed the issue of Internet jurisdiction in Desjean v Intermix Media Inc (2006 FC 1395), a case involving an allegation that the defendant (Intermix) violated the misleading representations provisions of the Competition Act by bundling without disclosure "spyware" or "adware" with free software offered on various web sites. The Intermix head office was located in California and it had no servers, bank accounts, or employees in Canada, nor did it target Canadian consumers.

As predicted in an earlier issue of E-TIPS® ("Fundamental Changes Looming in Canadian Telecom Policy", Vol 4, No 19, March 29, 2006), the current Canadian government is continuing to implement changes recommended by the Telecommunications Review Panel which are consistent with the government's own strategic goal of reducing regulation in the telecommunications sector.

Just before the holiday recess, the US Senate outlawed the practice of "pretexting", that is, inducing telephone carriers to divulge the calling records of private individuals. Entitled the Law Enforcement and Phone Privacy Protection Act, the legislation provides maximum penalties of 10-year prison sentences and fines of $500,000.

A UK government-commissioned but independently prepared Gowers Review of Intellectual Property (Review) was released on December 1 and has received a generally positive reception from interested parties.