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

OPC Provides Guidance on Disclosure Provisions OPC Provides Guidance on Disclosure Provisions

Privacy
April 5, 2017April 5, 20172017-04-05
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 Wall http://www.dww.com/articles/opc-provides-guidance-on-disclosure-provisions

Privacy Commissioner Focuses on Obtaining Greater Privacy Protection for Canadians in the US Privacy Commissioner Focuses on Obtaining Greater Privacy Protection for Canadians in the US

Privacy
April 5, 2017April 5, 20172017-04-05
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 Wall http://www.dww.com/articles/privacy-commissioner-focuses-on-obtaining-greater-privacy-protection-for-canadians-us

Cloud Infrastructure Service Providers in Europe Release Data Protection Code of Conduct Cloud Infrastructure Service Providers in Europe Release Data Protection Code of Conduct

Privacy
March 23, 2017March 23, 20172017-03-23
In January 2017, the Cloud Infrastructure Service Providers in Europe (CISPE) published a Data Protection Code of Conduct for Cloud Infrastructure Service Providers (the Code of Conduct).
Deeth Williams Wall http://www.dww.com/articles/cloud-infrastructure-service-providers-europe-release-data-protection-code-of-conduct

High Court Ups the Ante on Pirated Football Matches High Court Ups the Ante on Pirated Football Matches

Copyright
March 23, 2017March 23, 20172017-03-23
On March 13, 2017, in The Football Association Premier League Limited v British Telecommunications PLC, [2017] 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 Wall http://www.dww.com/articles/high-court-ups-ante-on-pirated-football-matches

The Supreme Court of British Columbia Awards Damages of $52,527.07 for Copyright Infringement The Supreme Court of British Columbia Awards Damages of $52,527.07 for Copyright Infringement

Copyright
March 23, 2017March 23, 20172017-03-23
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 Wall http://www.dww.com/articles/supreme-court-of-british-columbia-awards-damages-of-5252707-for-copyright-infringement

English Court of Appeal Affirms 12-Month Sentence for Distribution of Infringing Musical Works English Court of Appeal Affirms 12-Month Sentence for Distribution of Infringing Musical Works

Copyright
March 23, 2017March 23, 20172017-03-23
In R v Evans ([2017] 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 Wall http://www.dww.com/articles/english-court-of-appeal-affirms-12month-sentence-for-distribution-of-infringing-musical

Federal Court Awards $1 Million in Punitive Damages in Patent Case Federal Court Awards $1 Million in Punitive Damages in Patent Case

Patent Litigation
March 23, 2017March 23, 20172017-03-23
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 Wall http://www.dww.com/articles/federal-court-awards-1-million-punitive-damages-patent-case-0

Inadequate Disclosure Stops Snowmobile Patent In Its Tracks: Bombardier Recreational Products Inc v Arctic Cat Inc Inadequate Disclosure Stops Snowmobile Patent In Its Tracks: Bombardier Recreational Products Inc v Arct...

Patent Litigation
March 23, 2017March 23, 20172017-03-23
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 Wall http://www.dww.com/articles/inadequate-disclosure-stops-snowmobile-patent-its-tracks-bombardier-recreational-products

Game Over: the Federal Court of Canada Puts an End to Video Game Hacking in Novel Case Considering Circumventions of TPMs Game Over: the Federal Court of Canada Puts an End to Video Game Hacking in Novel Case Considering Circum...

Trademark and Copyright Litigation
March 8, 2017March 8, 20172017-03-08
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 Wall http://www.dww.com/articles/game-over-federal-court-of-canada-puts-an-end-to-video-game-hacking-novel-case-0

Interlocutory Injunction in Canada’s Trademark Infringement Cases – Success is in the Details Interlocutory Injunction in Canada’s Trademark Infringement Cases – Success is in the Details

Trademark
March 8, 2017March 8, 20172017-03-08
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 Wall http://www.dww.com/articles/interlocutory-injunction-canada%E2%80%99s-trademark-infringement-cases-%E2%80%93-success-details-0