Bloatware Beware: Lenovo Cannot “Uninstall” Class Action with Motion to Strike Bloatware Beware: Lenovo Cannot “Uninstall” Class Action with Motion to Strike

Technology Contracting
March 8, 2017March 8, 20172017-03-08
On February 17, 2017, in Bennett v Lenovo, 2017 ONSC 1082, the Ontario Superior Court of Justice dismissed the majority of Lenovo (Canada) Inc (Lenovo) and Superfish Inc’s motion to strike claims related to pre-loaded software present on a Lenovo laptop.
Deeth Williams Wall http://www.dww.com/articles/bloatware-beware-lenovo-cannot-%E2%80%9Cuninstall%E2%80%9D-class-action-motion-to-strike-0

Federal Court of Appeal Remits Issue of Non-Infringing Alternative Federal Court of Appeal Remits Issue of Non-Infringing Alternative

Pharmaceutical Patent Litigation
February 22, 2017February 22, 20172017-02-23
On February 2, 2017, the Federal Court of Appeal issued its decision in Apotex Inc, et al v ADIR and Servier Canada Inc, 2017 FCA 23. The case was an appeal of the Federal Court decision determining the amount of Apotex’s profits attributable to the infringement of Canadian Patent 1,341,196 for the drug perindopril after Servier Canada Inc (Servier) had elected to recover profits.
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-remits-issue-of-noninfringing-alternative

Ontario Court Considers Limitation of Liability Clause in IT Contract Dispute Ontario Court Considers Limitation of Liability Clause in IT Contract Dispute

Technology Contracting
February 22, 2017February 22, 20172017-02-23
On December 7, 2016, Ontario’s Superior Court of Justice (the Court) released its reasons in Atos IT Solutions and Services GmbH and Atos Inc v Sapient Canada Inc, 2016 ONSC 6852, a decision relating to a contract dispute between the primary IT contractor for a solution, Sapient Canada Inc (Sapient), and its subcontractors, Siemens Canada Limited and Siemens Austria (together, Siemens), who are predecessor entities to the plaintiffs, Atos Inc and Atos IT Solutions and Services GmbH (together, Ato
Deeth Williams Wall http://www.dww.com/articles/ontario-court-considers-limitation-of-liability-clause-it-contract-dispute

US Courts Will Not Hear Further Arguments in Microsoft Case US Courts Will Not Hear Further Arguments in Microsoft Case

Cloud
February 22, 2017February 22, 20172017-02-23
As previously reported by E-TIPS Newsletter here, the US Department of Justice (DOJ) had petitioned for an en banc rehearing by the US Second Circuit Court of Appeals (the Court) after the Court concluded that it was not authorized under the Stored Communications Act to issue and enforce a warrant against US-based internet service providers for the disclosure of Microsoft’s customer email content stored on foreign servers.
Deeth Williams Wall http://www.dww.com/articles/us-courts-will-not-hear-further-arguments-microsoft-case

Federal Court of Appeal Upholds $6.5 Million Cost Award for Patent Infringement Federal Court of Appeal Upholds $6.5 Million Cost Award for Patent Infringement

Patent Litigation
February 22, 2017February 22, 20172017-02-23
On February 6, 2017, the Federal Court of Appeal upheld a cost award totalling $6.5 million granted to Dow Chemical Company (Dow) by Justice O’Keefe in Nova Chemicals Corporation v. Dow Chemical Company, 2016 FC 91. At the time of this publication, we are not aware of a larger cost award granted by the Federal Court for patent infringement.
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-upholds-65-million-cost-award-for-patent-infringement

US Amended Rule 41 Now In Force US Amended Rule 41 Now In Force

Privacy
February 22, 2017February 22, 20172017-02-23
On December 1, 2016, an amendment to Rule 41 of the United States Federal Rules of Criminal Procedure, which regulates legal search and seizure, came into force.  The amended Rule 41, which now allows for remote-access searches, reads:
Deeth Williams Wall http://www.dww.com/articles/us-amended-rule-41-now-force

BC Court of Appeal Finds Using Trademarks as Keywords in Internet Advertising Constitutes Passing Off BC Court of Appeal Finds Using Trademarks as Keywords in Internet Advertising Constitutes Passing Off

Trademark
February 8, 2017February 8, 20172017-02-08
Vancouver Community College v Vancouver Career College (Burnaby), 2017 BCCA 41, concerns the use of competitors’ marks in the context of keyword internet searches. The appellant claimed that the respondent’s use of its official mark “VCC” in their internet advertising and domain name (VCCollege.ca) constituted passing off.
Deeth Williams Wall http://www.dww.com/articles/bc-court-of-appeal-finds-using-trademarks-as-keywords-internet-advertising-constitutes

Close Ties to China Too Speculative to Establish Interlocutory Mareva Injunction in Patent Infringement Action Close Ties to China Too Speculative to Establish Interlocutory Mareva Injunction in Patent Infringement A...

Patent Litigation
February 8, 2017February 8, 20172017-02-09
A Mareva injunction is a form of interlocutory injunction that freezes a party’s assets so that they cannot be removed from the jurisdiction or dissipated in order to thwart a potential judgment.  In a recent case concerning a patent infringement action, Unilin Beheer BV v Triforest Inc, 2017 FC 76, Gascon J of the Federal Court held that to obtain an interlocutory Mareva injunction, the plaintiff must provide clear and convincing evidence of a “real risk” of the expatriation of asserts by the defendant in order to avoid a judgment.  Gascon J was not satisfied that the plaintiffs (
Deeth Williams Wall http://www.dww.com/articles/close-ties-to-china-too-speculative-to-establish-interlocutory-mareva-injunction-patent

Federal Court of Appeal Upholds Decision Regarding Tariff of Access for Kindergarten to Grade 12 Educational Institutions Federal Court of Appeal Upholds Decision Regarding Tariff of Access for Kindergarten to Grade 12 Educatio...

Trademark and Copyright Litigation
February 8, 2017February 8, 20172017-02-08
On January 27, 2017, the Federal Court of Appeal (Court) released a unanimous decision in Canadian Copyright Licensing Agency (Access Copyright) v British Columbia (Education), 2017 FCA 16, affirming the decision from the Copyright Board (Board) regarding the doctrine of fair dealing and Canadian Copyright Licensing Agency (Access) royalty rates.
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-upholds-decision-regarding-tariff-of-access-for-kindergarten-to

Reasonable Royalty Awarded for Pre-Grant Patent Infringement in Frac Shack Inc v AFD Petroleum Ltd Reasonable Royalty Awarded for Pre-Grant Patent Infringement in Frac Shack Inc v AFD Petroleum Ltd

Patent Litigation
February 8, 2017February 8, 20172017-02-08
On January 26, 2017, in Frac Shack Inc v AFD Petroleum Ltd, 2017 FC 104, the Federal Court awarded an accounting of profits and a reasonable royalty of 29% of the infringer’s profits for pre-issuance patent infringement.  This case is noteworthy because the plaintiff published their patent application early and obtained an award for pre-issuance compensation.
Deeth Williams Wall http://www.dww.com/articles/reasonable-royalty-awarded-for-pregrant-patent-infringement-frac-shack-inc-v-afd-petroleum

Federal Court Orders Removal of Canadian Court and Tribunal Decisions Containing Personal Information from Third Party Website Federal Court Orders Removal of Canadian Court and Tribunal Decisions Containing Personal Information fro...

Privacy
February 8, 2017February 8, 20172017-02-08
In AT v Globe24h.com (2017 FC 114), the Federal Court (Court) found that a Romanian website owner contravened the Personal Information Protection and Electronics Documents Act (PIPEDA) by publishing personal information contained in Canadian court and tribunal decisions without the consent of the named individuals. The infamous website republishes legal decisions in a manner that allows for indexing by search engines, such as Google®.
Deeth Williams Wall http://www.dww.com/articles/federal-court-orders-removal-of-canadian-court-and-tribunal-decisions-containing-personal

US Executive Order Removes Privacy Protections for Foreigners (Including Canadians) US Executive Order Removes Privacy Protections for Foreigners (Including Canadians)

Privacy
February 8, 2017February 8, 20172017-02-08
On January 25th, President Trump signed an Executive Order effectively terminating privacy protections in the US for those living outside of the United States (Order). The Order requires that all US government offices remove privacy policies protecting non-US citizens. Such policies act a chief source of privacy protection from US Government intelligence gathering entities.
Deeth Williams Wall http://www.dww.com/articles/us-executive-order-removes-privacy-protections-for-foreigners-including-canadians

Saskatchewan Court Finds Accessibility of a Website in Canada Insufficient to Establish Territorial Jurisdiction Saskatchewan Court Finds Accessibility of a Website in Canada Insufficient to Establish Territorial Juris...

Information Technology
February 8, 2017February 8, 20172017-02-08
In Chief Commissioner of State Revenue (for the state of New South Wales, Australia) v Babatunde, 2017 SKQB 3, the Saskatchewan Court of Queen’s Bench (Court) dismissed a claim for lack of territorial competence or jurisdiction where the Defendant’s only connection to Saskatchewan was the accessibility of its government website in the province
Deeth Williams Wall http://www.dww.com/articles/saskatchewan-court-finds-accessibility-of-a-website-canada-insufficient-to-establish

Amazon to Pay $1 Million Penalty Following Investigation into Ordinary Price Claims Amazon to Pay $1 Million Penalty Following Investigation into Ordinary Price Claims

Regulatory Law
January 25, 2017January 25, 20172017-02-08
The popular online retailer Amazon.com.ca Inc (Amazon) has agreed to pay a penalty of $1 million, and $100,000 towards the Competition Bureau’s costs, following an investigation into the price claims displayed on the retailer’s website.
Deeth Williams Wall http://www.dww.com/articles/amazon-to-pay-1-million-penalty-following-investigation-into-ordinary-price-claims

Canadian Court Issues First Information Technology Patent Decision Brought by Non-Practising Entity Canadian Court Issues First Information Technology Patent Decision Brought by Non-Practising Entity

Patent Litigation
January 25, 2017January 25, 20172017-02-07
On January 4, 2017, the Canadian Federal Court (FC) issued the first decision in Canada on the validity and infringement of an information technology patent owned by a non-practising entity (Media Tube Corp v Bell Canada, 2017 FC 6).  Media Tube Corp (Media Tube) owns Canadian Patent No.
Deeth Williams Wall http://www.dww.com/articles/canadian-court-issues-first-information-technology-patent-decision-brought-by

Competition Bureau and Others Focus on the Future of FinTech Competition Bureau and Others Focus on the Future of FinTech

Information Technology
January 25, 2017January 25, 20172017-02-07
On February 21, 2017, Canada’s Competition Bureau will be bringing together start-ups, banks, and regulators in a workshop to examine the connections between competition, innovation and regulation in FinTech.  The workshop will form the basis of the Competition Bureau’s forthcoming market study exploring the impact of FinTech on Businesses and Consumers in Canada, due in the fall of 2017. 
Deeth Williams Wall http://www.dww.com/articles/competition-bureau-and-others-focus-on-future-of-fintech
Pharmaceutical Patent Litigation
January 25, 2017January 25, 20172017-02-07
On January 12, 2017, the Canadian Federal Court of Appeal (FCA) upheld the validity and the infringement of AstraZeneca’s omeprazole formulation patent by Apotex (Canadian Patent No. 1,292,693 or 693 Patent) in Apotex Inc v AstraZeneca Canada Inc, 2017 FCA 9.
Deeth Williams Wall http://www.dww.com/articles/federal-court-of-appeal-affirms-astrazeneca%E2%80%99s-omeprazole-formulation-patent-valid-and

CIPO Revises Ch. 17 of MOPOP, Releases Six Industrial Design Practice Notices CIPO Revises Ch. 17 of MOPOP, Releases Six Industrial Design Practice Notices

Industrial Design
January 25, 2017January 25, 20172017-02-07
In January 2017, MOPOP Sections 17.07 and 17.08 relating to Biotechnology and Medicinal Inventions were revised by the Canadian Intellectual Property Office (CIPO). A comprehensive list of the changes is available here.
Deeth Williams Wall http://www.dww.com/articles/cipo-revises-ch-17-of-mopop-releases-six-industrial-design-practice-notices

Updates to ISO/IEC 27004 (Measuring Information Security Effectiveness) Updates to ISO/IEC 27004 (Measuring Information Security Effectiveness)

Security
January 25, 2017January 25, 20172017-02-07
In December 2016, the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC) updated information technology standard 27004, which is intended to assist organizations in the evaluation of information security performance and the effectiveness of information security management systems (ISO/IEC 27004:2016).  ISO/IEC 27004:2016 replaces ISO/IEC 27004:2009, and includes updates to bring the standard into alignment with the current version of ISO/IEC 27001 (
Deeth Williams Wall http://www.dww.com/articles/updates-to-isoiec-27004-measuring-information-security-effectiveness

E-TIPS® Newsletter's "2016: Year in Review" E-TIPS® Newsletter's "2016: Year in Review"

Intellectual Property
January 12, 2017January 12, 20172017-01-12
Thank you for your readership over the last year and welcome to what is sure to be an exciting 2017!  In this year’s first issue of the E-TIPS® Newsletter, we will recap our most noteworthy reports from 2016 covering developments in IP and IT law, under the following categories: (1) “Supreme Court of Canada Matters”, (2) “Patents”, (3) “Trademarks/Copyright”, (4) “Pharmaceutical Matters”, (5) “IT/Privacy”, (6) “Legislative, Treaty and Policy Developments” and (7) “Foreign Developments”.
Deeth Williams Wall http://www.dww.com/articles/etips%C2%AE-newsletters-2016-year-review