US Federal Circuit Considers On-Sale Bar under the America Invents Act US Federal Circuit Considers On-Sale Bar under the America Invents Act

Patent
May 17, 2017May 17, 20172017-05-17
On May 1, 2017, the US Federal Circuit issued an important decision interpreting the on-sale bar provision under the America Invents Act (AIA) in Helsinn Healthcare SA v Teva Pharmaceuticals USA
Deeth Williams Wall http://www.dww.com/articles/us-federal-circuit-considers-onsale-bar-under-america-invents-act

CRTC Directs Videotron to Comply with Telecommunications Act CRTC Directs Videotron to Comply with Telecommunications Act

Telecommunications
May 17, 2017May 17, 20172017-05-17
In a decision released April 20, 2017, the Canadian Radio-television and Telecommunications Commission (CRTC) concluded that Quebecor Media Inc, Videotron Ltd, and Videotron GP (collectively, Videotron) gave an undue preference to subscribers who accessed the Unlimited Music
Deeth Williams Wall http://www.dww.com/articles/crtc-directs-videotron-to-comply-telecommunications-act

US Federal Circuit Suggests All Four eBay Factors Must be Satisfied for Injunctive Relief US Federal Circuit Suggests All Four eBay Factors Must be Satisfied for Injunctive Relief

Patent
May 17, 2017May 17, 20172017-05-17
The US Federal Circuit in Nichia Corp v Everlight Americas Inc, No. 16-1585 (Fed Cir 2017) suggests that all four “eBay factors” are necessary to grant permanent injunctive relief.
Deeth Williams Wall http://www.dww.com/articles/us-federal-circuit-suggests-all-four-ebay-factors-must-be-satisfied-for-injunctive-relief

Federal Court Outlines How to Calculate Section 8 Damages, Clarifies Evidentiary Issues and Rejects Pipefill Claim Federal Court Outlines How to Calculate Section 8 Damages, Clarifies Evidentiary Issues and Rejects Pipef...

Patent
May 17, 2017May 17, 20172017-05-17
The Federal Court in Eli Lilly Canada Inc v Teva Canada Ltd, 2017 FC 88 established how to calculate the section 8 damages Teva was entitled to as a result of being prevented from entering the olanzapine market in 2006-2007.
Deeth Williams Wall http://www.dww.com/articles/federal-court-outlines-how-to-calculate-section-8-damages-clarifies-evidentiary-issues-and

Canada’s Federal Court Awards “Springboard” Profits in Patent Infringement Case Canada’s Federal Court Awards “Springboard” Profits in Patent Infringement Case

Patent Litigation
May 3, 2017May 3, 20172017-05-16
On April 19, 2017, Canada’s Federal Court (FC) issued a decision regarding how to calculate the financial remedy payable by the defendant, Nova Chemicals Corporation (Nova), to the plaintiffs (collectively Dow) as a result of Nova’s infringement of Dow’s Canadian Patent No 2,160,705 (The Dow Chemical Company v Nova Chemicals Corporation, 2017 FC 350).  Previously, the FC found that Dow’s paten
Deeth Williams Wall http://www.dww.com/articles/canada%E2%80%99s-federal-court-awards-%E2%80%9Cspringboard%E2%80%9D-profits-patent-infringement-case

Louis Vuitton Takes Aim at Flea Market Landlords in Counterfeit Goods Action Louis Vuitton Takes Aim at Flea Market Landlords in Counterfeit Goods Action

Litigation
May 3, 2017May 3, 20172017-05-04
The issue of landlord liability in tenant counterfeit is novel to Canadian Courts, although the US and China have found liability in similar situations.  Recently, a Canadian Court has opened a door to such claims.
Deeth Williams Wall http://www.dww.com/articles/louis-vuitton-takes-aim-at-flea-market-landlords-counterfeit-goods-action

Duty to Mitigate Should Consider Reasonableness of Party’s Actual Course of Conduct Duty to Mitigate Should Consider Reasonableness of Party’s Actual Course of Conduct

Litigation
May 3, 2017May 3, 20172017-05-04
On April 6, 2017, Canada’s Federal Court of Appeal (FCA) reversed the Federal Court’s (FC) finding that Apotex failed to mitigate its losses in its action against Health Canada for damages as a result of Health Canada’s misfeasance of public office and negligence (Apotex Inc v Canada (Minister of Health), 2017 FCA 73, rev’g in part 2014 FC 1087).
Deeth Williams Wall http://www.dww.com/articles/duty-to-mitigate-should-consider-reasonableness-of-party%E2%80%99s-actual-course-of-conduct

Privacy Commissioner of Canada Provides Tips on Ensuring Privacy When Using Wearable Technologies Privacy Commissioner of Canada Provides Tips on Ensuring Privacy When Using Wearable Technologies

Privacy
May 3, 2017May 3, 20172017-05-04
On April 18, 2017, the Office of the Privacy Commissioner of Canada (OPC) released tips for ensuring privacy while using wearable technologies, such as fitness trackers. Wearable technologies have raised privacy concerns as they collect data in real time about a user’s day-to-day activities, choices, and environment. This data may be used in unexpected ways, such as shared with third parties or posted on the internet. As a result, the OPC offered the following tips to users:
Deeth Williams Wall http://www.dww.com/articles/privacy-commissioner-of-canada-provides-tips-on-ensuring-privacy-when-using-wearable

CRTC Publishes New Framework Regarding Differential Pricing Practices in Respect of Net Neutrality CRTC Publishes New Framework Regarding Differential Pricing Practices in Respect of Net Neutrality

Information Technology
May 3, 2017May 3, 20172017-05-04
On April 20, 2017, the Canadian Radio-television and Telecommunications Commission (CRTC) published a new framework regarding differential pricing practices of Internet service providers (ISPs) (Framework).
Deeth Williams Wall http://www.dww.com/articles/crtc-publishes-new-framework-regarding-differential-pricing-practices-respect-of-net

The Federal Circuit Rules PTAB Must Provide Sufficient Reasons to Justify Obviousness Findings The Federal Circuit Rules PTAB Must Provide Sufficient Reasons to Justify Obviousness Findings

Patent
May 3, 2017May 3, 20172017-05-04
In Securus Tech v Global Tel*Link (Fed. Cir. 2017), the Federal Circuit vacated in part and remanded the USPTO, Patent Trial and Appeal Board’s (the “Board”) obviousness determination of Securus Technologies, Inc’s US Patent No 7,860,222 (the 222 patent), finding that the Board failed to provide any reasoning for its decision with respect to certain challenged claims.
Deeth Williams Wall http://www.dww.com/articles/federal-circuit-rules-ptab-must-provide-sufficient-reasons-to-justify-obviousness-findings

Federal Court of Appeal Clarifies Meaning of “Inventive Concept” for Obviousness and Application of “Obvious to Try” Federal Court of Appeal Clarifies Meaning of “Inventive Concept” for Obviousness and Application of “Obvi...

Patent
April 19, 2017April 19, 20172017-04-20
On April 11, 2017, in Bristol-Myers Squibb Canada Co v Teva Canada Limited (2017 FCA 76), the Federal Court of Appeal (FCA) clarified the test for assessing obviousness subsequent to the Supreme Court of Canada’s 2008 seminal decision on this test in Apotex Inc v Sanofi-Synthelabo Canada Inc, 2008 SCC 61 (Plavix 1).  In Plavix 1, the SCC elaborated on how to construe the “inventive concept of the claim” and adopted the “obvious to try” test, which, it noted, might be app
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-clarifies-meaning-of-%E2%80%9Cinventive-concept%E2%80%9D-for-obviousness-and

Federal Court of Appeal Upholds Interlocutory Injunction Against Defendants Selling Set-top Boxes Federal Court of Appeal Upholds Interlocutory Injunction Against Defendants Selling Set-top Boxes

Litigation
April 19, 2017April 19, 20172017-04-20
On March 20, 2017, the Federal Court of Appeal (FCA) dismissed an appeal of the Federal Court’s interlocutory injunction order against the defendants in Wesley (Mtlfreetvcom) v Bell Canada, 2017 FCA 55, affirming 2016 FC 612) from among other things, selling set-top boxes pre-loaded with applications for accessing free online streaming websites (previously reported by E-TIP
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-upholds-interlocutory-injunction-against-defendants-selling-settop

UK High Court Makes Precedential Finding on FRAND Royalty Rates UK High Court Makes Precedential Finding on FRAND Royalty Rates

Information Technology
April 19, 2017April 19, 20172017-04-20
Unwired Planet International v Huawei, [2017] EWHC 711, provided the UK High Court with its first opportunity to provide guidance on FRAND (which stands for Fair Reasonable and Non-Discriminatory) royalty rates. The decision is likely to have considerable impact on licensing negotiations in the Technology, Media and Telecom (TMT) sector.
Deeth Williams Wall http://www.dww.com/articles/uk-high-court-makes-precedential-finding-on-frand-royalty-rates

Search Engines Beware: Court Opens Door to Statutory Damages under Copyright Act Search Engines Beware: Court Opens Door to Statutory Damages under Copyright Act

Copyright
April 19, 2017April 19, 20172017-04-20
On April 6, 2017, the Ontario Superior Court of Justice (ONSC) in Trader v CarGurus, 2017 ONSC 1841, provided the first judicial interpretation of the term “information location tool” in s.41.27 of the Copyright Act, R.S.C. 1985, c. C-42 (the Act).
Deeth Williams Wall http://www.dww.com/articles/search-engines-beware-court-opens-door-to-statutory-damages-under-copyright-act

Appeal Allowed Where Federal Court Did Not Apply Mark to Mark Comparison in Confusion Analysis Appeal Allowed Where Federal Court Did Not Apply Mark to Mark Comparison in Confusion Analysis

Trademark and Copyright Litigation
April 19, 2017April 19, 20172017-04-20
On March 15, 2017, in Benjamin Moore & Co Limited v Home Hardware Stores Limited, 2017 FCA 53, the Federal Court of Appeal (FCA) found that the Federal Court (FC) failed to engage in a mark to mark comparison in assessing trademark confusion and therefore remitted the matter back to the FC for redetermination. 
Deeth Williams Wall http://www.dww.com/articles/appeal-allowed-where-federal-court-did-not-apply-mark-to-mark-comparison-confusion

Ontario Court of Appeal Dismisses Appeal from Summary Judgment in Copyright and Trademark Infringement Action Ontario Court of Appeal Dismisses Appeal from Summary Judgment in Copyright and Trademark Infringement Ac...

Trademark and Copyright Litigation
April 19, 2017April 19, 20172017-04-19
On March 27, 2017, in Boaden Catering Limited v Real Food for Real Kids Inc, 2017 ONCA 248, the Ontario Court of Appeal dismissed the plaintiff, Boaden Catering Limited’s (Boaden’s) appeal in its entirety, affirming the decision of the lower court (previously reported in E-TIPS® her
Deeth Williams Wall http://www.dww.com/articles/ontario-court-of-appeal-dismisses-appeal-from-summary-judgment-copyright-and-trademark

Canada 2017 Budget Seeks to Build a Nation of Innovators Canada 2017 Budget Seeks to Build a Nation of Innovators

Intellectual Property
April 5, 2017April 5, 20172017-04-05
On March 22, 2017, the Government of Canada released the 2017 federal budget (the Budget). The Budget includes some important developments for Canada’s intellectual property sector.
Deeth Williams Wall http://www.dww.com/articles/canada-2017-budget-seeks-to-build-a-nation-of-innovators

NAFTA Arbitration Tribunal Dismisses Claim by Eli Lilly in Favour of Canada NAFTA Arbitration Tribunal Dismisses Claim by Eli Lilly in Favour of Canada

Pharmaceutical Patent Litigation
April 5, 2017April 5, 20172017-04-05
On March 16, 2017, a three-member panel of arbitrators (the Tribunal) unanimously dismissed Eli Lilly & Company’s (Eli Lilly’s) claim that the invalidation of its patents fails to satisfy Canada’s obligations under Chapter 11 of the North American Free Trade Agreement.
Deeth Williams Wall http://www.dww.com/articles/nafta-arbitration-tribunal-dismisses-claim-by-eli-lilly-favour-of-canada

The US Supreme Court Rejects the Equitable Defense of Laches in a Patent Infringement Case The US Supreme Court Rejects the Equitable Defense of Laches in a Patent Infringement Case

Patent Litigation
April 5, 2017April 5, 20172017-04-05
In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, the Supreme Court of the United States (the Court) vacated the Court of Appeals’ decision and held that the equitable defence of laches cannot be invoked against claims for patent infringement occurring during the six-year statutory limitations period, as defined by 35 U.S.C.
Deeth Williams Wall http://www.dww.com/articles/us-supreme-court-rejects-equitable-defense-of-laches-a-patent-infringement-case

Neiman Marcus Agrees to Settle Privacy Breach for $1.6-Million Neiman Marcus Agrees to Settle Privacy Breach for $1.6-Million

Security
April 5, 2017April 5, 20172017-04-05
Neiman Marcus, a luxury department store, has agreed to settle a class action claim against it relating to stolen customer credit card information for $1.6-million USD. Between the dates of July 16, 2013 and October 30, 2013, malicious software collected the payment data of approximately 350,000 customers. Of those compromised accounts, 9,200 were used for fraudulent transactions.
Deeth Williams Wall http://www.dww.com/articles/neiman-marcus-agrees-to-settle-privacy-breach-for-16million