E-TIPS

Following two years of hearings and debate, US Senators Orrin Hatch and Patrick Leahy, Co-Chairs of the US Senate's Intellectual Property Subcommittee, have introduced the Patent Reform Act of 2006 (Patent Bill).

The US Federal Communications Commission (FCC) recently affirmed its rules for Access Broadband over Power Lines (Access BPL), with the goal of facilitating the take-off of the so-called "third pipe" for broadband Internet access in many remote areas unable to be reached by cable or DSL.

On August 3rd, the US Senate ratified the Council of Europe's Convention on Cyber-crime, a treaty intended to harmonize computer crime laws and make it easier for law enforcement agencies to investigate and prosecute crimes in cyberspace.

An appeal pending before the US Court of Appeals for the Ninth Circuit (Perfect 10 Inc v Google Inc) will address important Internet copyright issues including deep-linking of web sites, framing of third party content, and use of copyrighted content for searching.

An Anton Piller order (court-supervised seizure before trial) can be a powerful weapon at a party's disposal in technology litigation. (See E-TIPS®, "A Federal Court of Canada Reminder: Anton Piller Orders are to be Granted Only in Exceptional Circumstances", Vol 4, No 18, March 15, 2006 for a summary of the Netbored v Avery Holdings case decided by Justice Hughes of the Federal Court of Canada).

Often, a company thinks of product development as a sieve – its developers throw in their ideas, most are filtered out, and a few pass through the sieve and eventually become marketable products. Increasingly, however, companies have come to think of the sieve as too rigid a model for modern times. Enter "Open Innovation".

The first phase of Toronto Hydro Telecom's Wi-Fi project was slated to blanket Toronto's financial district by June or July at the latest (see E-TIPS®, "Toronto Hydro Plans City-Wide Wireless Hot Spot", Vol 4, No 18, March 15, 2006). With August now upon us, Toronto's financial district is still lacking Wi-Fi capability. The delay was sparked by a number of factors, including technical and health and safety issues.

As recent patent disputes such as the RIM-NTP case have made headlines, the United States Patent and Trademark Office (USPTO) is now working with IBM, Open Source Development Labs (OSDL) and others to improve the examination of software patents. The group has decided to use a searchable database with an index of open-source code, as one of its leading tools to aid in the process.

From two recent articles in The Globe and Mail, it appears that Canadian applied research is alive and well and on the threshold of moving to production in two key sectors: basic materials manufacture and health science.

On July 6, 2006, the US District Court for the District of Colorado ruled that companies that produce sanitized copies of Hollywood films on DVD are violating copyright law and must stop editing out the content they find offensive.

In the decision Suzanne's Inc v Auld Phillips Ltd, 2005 FCA 429, the Canadian Federal Court of Appeal recently affirmed a trial decision in which an owner lost its trade-mark rights because a single competing user began to use the name extensively, and, as a result, the trade-mark lost its distinctiveness.

Patent applicants in the US may soon be able to expedite the examination of their applications. The United States Patent and Trade-mark Office (USPTO) recently published a proposal setting out the procedural steps and requirements for a new accelerated examination process. Under this new process, applicants who request and are entitled to have the examination of their application accelerated will receive a final decision on the patentability of their invention within 12 months.

On June 26, 2006, the US Supreme Court agreed to hear a patent dispute between auto parts suppliers KSR International Co (KSR), of Ridgetown, Ontario, and Teleflex Inc (Teleflex), of Limerick, Pennsylvania. The outcome may re-define the standard for obviousness in US patent law.

The Canadian Bar Association (CBA) has expressed serious concern about possible monitoring and disclosure by ISPs of their customers' Internet activity and the implications this has for solicitor-client privilege. The CBA expressed its view in an open letter dated July 5, 2006 addressed to Vic Toews, Minister of Justice and Attorney General, Stockwell Day, Minister of Public Safety, and Maxine Bernier, Minister of Industry.

The familiar, happy-go-lucky "smiley face", thought by most people to be public property, is at the centre of a very unsmiling dispute over rights to the design and use of the graphic.

The US Court of Appeals for the Second Circuit has held that creating options trading in stock exchange-indexed funds (ETFs) does not breach any proprietary rights of the stock exchanges which created the ETFs.

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.