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
On March 2, 2017, the Federal Court of Canada issued public judgment and reasons for an award totaling $1.5 million comprised of $500,000 in compensatory damages and $1 million in punitive damages for the plaintiff in Airbus Helicopters SAS v Bell Helicopter Texteron Canada Limitée, 2017 FC 170. Pursuant to an October 2, 2009 order, the quantification of damages in the proceeding was bifurcated from the liability issues. Under the liability phase, Bell Helicopter was found to have infringed Canadian Patent No.
Deeth Williams Wallhttp://www.dww.com/articles/federal-court-awards-1-million-punitive-damages-patent-case-0
On February 24, 2017, in Bombardier Recreational Products Inc v Arctic Cat Inc, 2017 FC 207, the Federal Court found that no valid claims were infringed, and dismissed the infringement action against Arctic Cat Inc with costs. Three of the four patents at issue would have been infringed but were invalid.
Deeth Williams Wallhttp://www.dww.com/articles/inadequate-disclosure-stops-snowmobile-patent-its-tracks-bombardier-recreational-products
On March 1, 2017, the Federal Court of Canada (FC) awarded Nintendo $12.7 million in damages in Nintendo of America Inc v King et al, 2017 FC 246. This ruling marks the first occasion for the FC to consider the issue of circumvention of Technical Protection Measures (TPMs) under the Copyright Act.
Deeth Williams Wallhttp://www.dww.com/articles/game-over-federal-court-of-canada-puts-an-end-to-video-game-hacking-novel-case-0
Interlocutory injunctions are rarely granted in trademark infringement cases (counterfeit cases aside) in Canada. This is largely due to the difficulty of establishing irreparable harm, the second element of a three-part test for granting an interlocutory injunction. The three-part test requires that: (1) a serious issue has been raised; (2) irreparable harm will result if the injunction is not granted; and (3) the balance of convenience favours the requesting party. The courts have repeatedly held that the determination of irreparable harm is a factual assessment which must be establis
Deeth Williams Wallhttp://www.dww.com/articles/interlocutory-injunction-canada%E2%80%99s-trademark-infringement-cases-%E2%80%93-success-details-0