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 Wallhttp://www.dww.com/articles/duty-to-mitigate-should-consider-reasonableness-of-party%E2%80%99s-actual-course-of-conduct
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 Wallhttp://www.dww.com/articles/privacy-commissioner-of-canada-provides-tips-on-ensuring-privacy-when-using-wearable
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 Wallhttp://www.dww.com/articles/crtc-publishes-new-framework-regarding-differential-pricing-practices-respect-of-net
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 Wallhttp://www.dww.com/articles/federal-circuit-rules-ptab-must-provide-sufficient-reasons-to-justify-obviousness-findings
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 Wallhttp://www.dww.com/articles/federal-court-of-appeal-clarifies-meaning-of-%E2%80%9Cinventive-concept%E2%80%9D-for-obviousness-and
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 Wallhttp://www.dww.com/articles/federal-court-of-appeal-upholds-interlocutory-injunction-against-defendants-selling-settop
Unwired Planet International v Huawei,  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 Wallhttp://www.dww.com/articles/uk-high-court-makes-precedential-finding-on-frand-royalty-rates
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 Wallhttp://www.dww.com/articles/search-engines-beware-court-opens-door-to-statutory-damages-under-copyright-act
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 Wallhttp://www.dww.com/articles/appeal-allowed-where-federal-court-did-not-apply-mark-to-mark-comparison-confusion
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 Wallhttp://www.dww.com/articles/ontario-court-of-appeal-dismisses-appeal-from-summary-judgment-copyright-and-trademark
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 Wallhttp://www.dww.com/articles/nafta-arbitration-tribunal-dismisses-claim-by-eli-lilly-favour-of-canada
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 Wallhttp://www.dww.com/articles/us-supreme-court-rejects-equitable-defense-of-laches-a-patent-infringement-case
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 Wallhttp://www.dww.com/articles/neiman-marcus-agrees-to-settle-privacy-breach-for-16million
On March 17, 2017, the Office of the Privacy Commissioner of Canada (OPC) published guidance for the application of Sections 7(3)(d.1)-(d.2) (the Provisions) of the Personal Information Protection and Electronic Documents Act (PIPEDA).
Deeth Williams Wallhttp://www.dww.com/articles/opc-provides-guidance-on-disclosure-provisions
In March 2017, the Office of the Privacy Commissioner of Canada published a letter sent to the Ministers of Justice, Public Safety and Defence, calling on Canadian officials to strengthen privacy protections available in the US to Canadians by adding Canada to the list of countries designated under the Judicial Redress Act.
Deeth Williams Wallhttp://www.dww.com/articles/privacy-commissioner-focuses-on-obtaining-greater-privacy-protection-for-canadians-us
On March 13, 2017, in The Football Association Premier League Limited v British Telecommunications PLC,  EWHC 480 (Ch), the High Court of Justice Chancery Division granted an injunction brought by the top league of British soccer (Premier League) against 5 domestic, retail internet service providers (collectively, the ISPs).
Deeth Williams Wallhttp://www.dww.com/articles/high-court-ups-ante-on-pirated-football-matches
In Ankenman Associates Architects Inc v 0981478 BC Ltd, 2017 BCSC 333, the Supreme Court of British Columbia (the Court) awarded the petitioner, Ankenman Associates Architects Inc (AAAI), damages of $52,527.07 for the respondent’s copyright infringement where a licence conditional on payment of fees did not pass to the respondent through foreclosure proceedings.
Deeth Williams Wallhttp://www.dww.com/articles/supreme-court-of-british-columbia-awards-damages-of-5252707-for-copyright-infringement
In R v Evans ( EWCA Crim 139), the English and Wales Court of Appeal affirmed a 12-month immediate prison sentence for an individual convicted of distributing infringing copies of musical works under the UK Copyright, Designs, Patents Act, 1988.
Deeth Williams Wallhttp://www.dww.com/articles/english-court-of-appeal-affirms-12month-sentence-for-distribution-of-infringing-musical