E-TIPS

On October 22, 2020, the Federal Court of Canada (the Court) issued its decision in Flatwork Technologies, LLC (Powerblanket) v Brierley, 2020 FC 997, a patent impeachment action brought under section 60(1) of the Patent Act. The Court granted summary judgment, invalidating Canadian Patent 2,383,341 (the ‘341 Patent), which describes an electric heating wrap for use on articulated hydraulic booms, on the basis of obviousness.

On October 27, 2020, the Office of the Privacy Commissioner of Canada (OPC) announced two resolutions adopted by the Global Privacy Assembly (GPA, formerly the International Conference of Data Protection and Privacy Commissioners) concerning the development and use of facial recognition technology and artificial intelligence (AI) systems.

On October 23, 2020, the Patented Medicine Prices Review Board (PMPRB) published final Guidelines, which set out the PMPRB’s approach to the price review process and investigations.

On October 13, 2020, Verificient Technologies (Verificient), the company that developed the exam proctoring program Proctortrack announced that a security breach was detected. According to the announcement, a preliminary assessment indicated that an unknown person gained unauthorized access to an automated testing server.

Presentation by Gary Daniel of Deeth Williams Wall LLP and Madam Justice Fuhrer of the Federal Court of Canada exploring the philosophical conflicts between Indigenous culture and 21st-century intellectual property laws, their implications for the domestic and international protection of IP rights in the digital age and an overview of how laws in Canada and abroad are dealing with these issues. Watch the Video (Archive)

On September 30, 2020, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that it has reached an agreement with Notesolution Inc. (OneClass) regarding alleged violations of Canada’s Anti-spam Legislation (CASL).

On October 6, 2020, the United States Patent and Trademark Office (USPTO) published its report entitled Public Views on Artificial Intelligence and Intellectual Property Policy (the Report) addressing the impact of artificial intelligence (AI) technology across the intellectual property (IP) landscape. The Report summarizes nearly 200 submissions received by the USPTO in response to two requests for comments soliciting public input on (i) patenting AI-based inventions; and (ii) other IP protections for AI technology, namely copyright, trademark, database protections, and trade secret law.

On October 13, 2020, the Office of the Privacy Commissioner of Canada (the OPC) announced it had launched investigations into recent cyber security incidents targeting Government of Canada organizations including, the Canada Revenue Agency (as reported previously by the E-TIPS® Newsletter here).

On October 8, 2020, the US Court of Appeals for the Third Circuit (the Court) released its decision in Ezaki Glico Kabushiki Kaisha v Lotte International America Corp, No. 19-3010 (3d Cir. 2020), in which it upheld the decision of the District Court finding that the "Pocky" stick-shaped cookie design was functional and therefore not eligible for trade dress protection.

The Office of the Privacy Commissioner of Canada (OPC) published its 2019-2020 Annual Report to Parliament (the Annual Report) on the Privacy Act and Personal Information Protection and Electronic Documents Act. In addition to providing statistical information, descriptions of business and government advisory work, and summaries of investigations, the Annual Report also discusses how the COVID-19 pandemic is raising important new privacy issues.

On September 23, 2020, Canadian e-commerce company Shopify Inc. (Shopify) announced that, in accordance with its obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA), it had notified the Office of the Privacy Commissioner of Canada (the OPC) about a security incident carried out by two "rogue" employees.

In July of 2017, the Federal Court of Canada granted the largest damages award in Canadian history for patent infringement on the basis of an accounting of profits in Dow Chemical Company v Nova Chemical Corporation, 2017 FC 637, as previously reported by the E-TIPS® Newsletter here.

On September 24, 2020, the Privacy Commissioner of Canada (the Commissioner) appeared before the Committee on Institutions of the National Assembly of Quebec to discuss Bill 64, An Act to modernize legislative provisions as regards the protection of personal information (the Bill). The Bill was introduced on June 12, 2020, and proposes a number of provisions to protect personal information in the private and public sectors, as previously reported by the E-TIPS® Newsletter here.

On September 22, 2020, Evel Knievel’s son, Kelly Knievel, brought a federal infringement lawsuit against Disney and Pixar in the Nevada District Court, alleging that the filmmakers unlawfully based the Toy Story 4 character, Duke Caboom, on Evel Knievel.

On September 14, 2020, the EU Intellectual Property Office (EUIPO) held that Banksy’s trademark for the artwork ‘Flower Thrower’ (depicted at right) was filed in bad faith, and therefore is invalid.

On September 9, 2020, in Miller Thomson LLP v Hilton Worldwide Holding LLP, 2020 FCA 134, the Federal Court of Appeal of Canada (FCA) dismissed an appeal from the Federal Court (FC), finding that Hilton Worldwide Holding LLP (Hilton) had used its trademark WALDORF ASTORIA in association with “hotel services” in Canada, despite the fact that there was no “bricks and mortar” hotel under the name.

On September 10, 2020, in Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, the Federal Court of Appeal of Canada (the Court) dismissed an appeal brought by large cable and telephone companies against the Canadian Radio-television and Telecommunications Commission’s (CRTC)’s Telecom Order CRTC 2019-288 (TO 2019-288) in relation to the rates these companies charge smaller companies for use of their networks.

On September 14, 2020, Alphabet Inc., the parent company of Google and YouTube, was subject to a representative action in the United Kingdom alleging that video-streaming service YouTube "routinely" tracks children's activity online without parental consent. The claimants, consisting of over five million British children and their parents, are seeking over 2.5 billion pounds (over CA$4.2B) in compensation total from the tech conglomerate.

On September 8, 2020, the United States Court of Appeals for the Ninth Circuit (the Court) released its decision in Corbello v Valli, No. 17-16337, affirming the district court’s judgment that the musical Jersey Boys (the Play) did not infringe the copyright in the unpublished nonfiction autobiography of The Four Seasons band member Tommy DeVito (the Work).

On September 8, 2020, an op-ed by the Privacy Commissioner of Canada, Daniel Therrien (the Commissioner), titled “The value of data, the values of privacy” was published in the Hill Times. The op-ed focused on the recent acceleration of digitization and other technological trends, such as telemedicine, in response to the COVID-19 pandemic.