On May 31, 2016, Canada’s Federal Court of Appeal (FCA) overturned a decision of Zinn J of the Federal Court awarding Teva Canada Limited (Teva) Section 8 damages to compensate for the statutory delay triggered by Pfizer Canada Inc.’s (Pfizer) application under the Patented Medicines (Notice of Compliance) Regulations concerning Teva’s venlafaxine hydrochloride products (Pfizer’s EFFEXOR XR®) (Pfizer Canada Inc v Teva Canada Limited, 2016 FCA 161; rev’g
Deeth Williams Wallhttp://www.dww.com/articles/canada%E2%80%99s-federal-court-of-appeal-sets-aside-teva%E2%80%99s-venlafaxine-section-8-award-for
In Biocad Médical Inc c Panthera Dentaire Inc, 2015 QCCS 6555 (Google English translation), the Québec Superior Court (the Court) dismissed the plaintiffs’ claims for copyright infringement of software for the design of dental implants. The plaintiffs alleged that the defendants reproduced a substantial part of the software’s source code, contrary to the Copyright Act (Act
Deeth Williams Wallhttp://www.dww.com/articles/quebec-superior-court-considers-ideaexpression-dichotomy-and-rejects-copyright
On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., the US Supreme Court (the Court) rejected the Federal Circuit’s two-part Seagate test for awarding enhanced patent damages under 35 USC § 284 as being “unduly rigid”. The Court held that both the substantive requirement for “objective recklessness” and the “clear and convincing” standard of proof required by Seagate were inconsistent with the intent of the statute.
Deeth Williams Wallhttp://www.dww.com/articles/us-supreme-court-rejects-%E2%80%9Cunduly-rigid%E2%80%9D-test-for-awarding-enhanced-patent-damages
On May 27, 2016, the Council of the European Union (EU) adopted a Directive which sets out rules for the protection of trade secrets and confidential information owned by EU companies. Member states have two years to incorporate the Directive into domestic law.
Deeth Williams Wallhttp://www.dww.com/articles/european-union-adopts-new-directive-on-trade-secrets
On June 3, 2016, Canada’s Competition Tribunal issued an Order lifting Toronto Real Estate Board’s (TREB) restrictions on its member agents’ access to important data, including historical listings and sale prices, for display online through virtual office websites. This Order followed the reasons issued by the Competition Tribunal (Tribunal) on April 27, 2016, concluding that TREB had abused its dominant position in the Toronto residentia
Deeth Williams Wallhttp://www.dww.com/articles/canada%E2%80%99s-competition-tribunal-orders-toronto-real-estate-board-to-remove-anticompetitive
On May 11, 2016, the Privacy Commissioner of Canada announced the launch of a public consultation to review the current consent model under Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA).
Deeth Williams Wallhttp://www.dww.com/articles/privacy-commissioner-of-canada-publishes-notice-of-consultation-to-review-current-consent
In Keatley Surveying v Teranet, 2016 ONSC 1717, the Ontario Superior Court of Justice (the Court) granted a motion for summary judgement dismissing a class action against Teranet Inc. (Teranet), which is the organization responsible for managing Ontario’s land registry system. The issue addressed in the class action was whether Teranet’s copying and selling of survey documents infringed the copyright of surveyors who created and registered such documents within the land registry system.
Deeth Williams Wallhttp://www.dww.com/articles/court-dismisses-class-action-against-teranet
The Federal Court recently released a Notice to the Parties and the Profession: Case Management Guidelines for NOC Applications (the Notice) providing guidance on case management of proceedings under the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) proceedings). The Notice provides the following:
1. Hearing Duration
Deeth Williams Wallhttp://www.dww.com/articles/federal-court-releases-updated-case-management-guidelines-for-pmnoc-proceedings
In a press release published May 19, 2016, Health Canada and the Canadian Food Inspection Agency announced that genetically modified (GMO) salmon developed by AquaBounty Technologies, Inc. (AquaBounty) has been approved for sale as food in Canada. This follows the U.S. Food and Drug Administration’s approval for the sale of the salmon product in the U.S. in November 2015.
Deeth Williams Wallhttp://www.dww.com/articles/want-nongmo-salmon-go-fish
In Maltz v Witterick, 2016 FC 524, the Federal Court (the Court) dismissed claims for infringement of copyright and moral rights, on the grounds that there is no copyright in historical facts contained in the Applicants’ documentary film. The Court found that facts, whether characterized as “small facts” or “large facts”, are not protected by copyright. Rather, copyright exists in the expression of facts through an exercise of skill and judgment.
Deeth Williams Wallhttp://www.dww.com/articles/federal-court-rejects-copyright-claim-based-on-copying-historical-facts
On May 4, 2016, Hélène David, Québec’s acting Minister of Culture and Communications and Minister Responsible for the Protection and Promotion of French Language, proposed draft regulations to require English-only trademarks appearing on signs or posters outside buildings and structures in Québec to be accompanied by the presence of French language.
Deeth Williams Wallhttp://www.dww.com/articles/qu%C3%A9bec-proposes-regulations-requiring-french-language-to-accompany-english-trademarks
A recent public opinion survey prepared for the Office of the Privacy Commissioner of Canada by Phoenix Strategic Perspectives Inc (Phoenix) found that many Canadian businesses see privacy as important, but do not necessarily satisfy their privacy obligations under the Personal Information Protection and Electronics Documents Act.
Deeth Williams Wallhttp://www.dww.com/articles/survey-finds-many-businesses-lack-privacy-basics
On May 4, 2016, the USPTO issued guidance materials for patent examiners to assess patent subject matter eligibility. The guidance materials focus on (i) how examiners should formulate a subject matter eligibility rejection and (ii) how examiners should evaluate an applicant’s response to a rejection.
Deeth Williams Wallhttp://www.dww.com/articles/uspto-updates-subject-matter-eligibility-guidance-materials
On April 26, 2016, in Re Nortel Networks Corporation (2016 ONSC 2732), the Ontario Superior Court of Justice granted Nortel’s summary judgment motion and found Nortel not liable for copyright infringement in relation to the sale of SNMP’s software under the Companies’ Creditors Arrangement Act (CCAA).
Deeth Williams Wallhttp://www.dww.com/articles/ontario-court-finds-no-liability-for-infringement-by-nortel-software-sale
On May 5, 2016, in re Facebook Biometric Information Privacy Litigation, (No 3:15-CV-03747-JD) the US District Court of the Northern District of California denied Facebook Inc’s motions for dismissal and summary judgment on the basis that the plaintiffs had stated a plausible claim for relief under the State of Illinois’s Biometric Information Privacy Act (BIPA).
Deeth Williams Wallhttp://www.dww.com/articles/us-district-court-denies-facebook%E2%80%99s-motions-facescanning-privacy-case
In late April 2016, the Beijing Higher People’s Court ruled in favour of social media giant Facebook following a trademark dispute involving Zhujiang Beverage, a Chinese beverage company.
In 2011, Zhujiang Beverage applied to register the trademark “face book” or “lian shu”, the Chinese translation, for its milk-flavored drinks and porridge. Facebook objected to the registration, but in 2014 China’s Trademark Review and Adjudication Board approved Zhujiang’s “face book” trademark.
Deeth Williams Wallhttp://www.dww.com/articles/facebook-wins-trademark-dispute-against-chinese-beverage-company-china
On April 20, 2016, Canada’s Federal Court of Appeal (FCA) released its judgment in Mylan Pharmaceuticals ULC v Eli Lilly Canada Inc, 2016 FCA 119, dismissing an appeal by Mylan Pharmaceuticals ULC (Mylan) from an order prohibiting regulatory approval of Mylan’s generic version of the Eli Lilly Canada Inc (Lilly) drug CIALIS® (tadalafil) until the expiry of Canadian Patent No. 2,226,784 (the 784 Patent).
Deeth Williams Wallhttp://www.dww.com/articles/canadian-federal-court-of-appeal-considers-key-patent-law-issues
On April 6, 2016, Canada’s Federal Court (FC) released its judgment in The Winning Combination Inc v Canada (Minister of Health), 2016 FC 381, allowing an application for judicial review brought by The Winning Combination Inc (TWC) from a series of decisions by Health Canada refusing TWC a product licence under the Natural Health Product Regulations for TWC’s product Resolve® (RESOLVE), a smoking cessation aid.
Deeth Williams Wallhttp://www.dww.com/articles/federal-court-of-canada-orders-health-canada-to-issue-nhp-product-licence