E-TIPS

In two recent decisions, the Federal Court of Appeal (FCA) has allowed applications for judicial review by Apotex Inc (Apotex) and the Canadian Generic Pharmaceutical Association (CGPA), respectively, to proceed. The proceedings were brought for review of the Regulations Amending the Food and Drug Regulations (New Data Protection Regulations) (New Regulations) which would prohibit a generic manufacturer from seeking a Notice of Compliance (NOC) based on comparison with an innovative drug until six years after the issuance of an NOC for the innovative drug, and to prevent the Minister of Health from issuing an NOC to the generic manufacturer for two more years.

In early 2007, the Canada Private Copying Collective proposed a tariff of levies to be collected on digital audio players such as iPods and other mp3 players sold in Canada.

The Privacy Commissioner of Canada (Commissioner) has asked the Minister of Industry and the Minister of Canadian Heritage to ensure that the privacy rights of Canadians be taken into account in framing possible amendments to the Copyright Act.

The Federal Court of Appeal, in Canadian Wireless Telecommunications Association v Society of Composers, Authors and Music Publishers of Canada, (2008 FCA 6), recently found that wireless transmission of ringtones from wireless carriers to the cellphones of their subscribers constitutes a communication to the public by telecommunication, which is an exclusive right of the copyright owner. As a result, the Court upheld the Copyright Board's decision to subject downloadable ringtones to copyright royalties (see E-TIPS®, "Canadian Copyright Board Decides Downloadable Ringtones Are Subject to Copyright" Vol 5, No 8, October 11, 2006.)

An opinion of the North Dakota Attorney General is reported to have concluded that e-mail communications among municipal commissioners may constitute a meeting for purposes of potentially violating the State's requirement for open, public meetings.

Not deterred by a loss in round one, Kraft Canada Inc (Kraft) has launched further proceedings against Euro-Excellence Inc (Euro) for alleged breach of copyright relating to the importation of Toblerone and Cote d'Or chocolate bars from Europe.

The federal government had planned to introduce a bill in early December to update the Copyright Act to bring it in line with Canada’s obligations under the two World Intellectual Property Organization (WIPO) treaties that it signed in 1997.

In a recent case, the Ontario Superior Court of Justice interpreted an ambiguous patent royalty agreement. The plaintiff, Lauren International, Inc (Lauren), obtained an assignment of patents from the defendant, Gerhard Reichert (Reichert), in return for a royalty of 1% of "Monthly Gross Sales by Lauren of "˜Super Spacer' Products".

On December 13, 2007, the Therapeutics Products Directorate (TPD) of Health Canada released its final publication of the Guidance Document: Patented Medicines (Notice of Compliance) Regulations (Guidance). The Guidance outlines the roles and responsibilities of first persons (brand manufacturers), second persons (generic manufacturers) and the TPD's Offices of Patented Medicines and Liaison (OPML), under the Patented Medicines (Notice of Compliance) Regulations.

Acxiom Corporation (Acxiom) is a data broker which searches phone books, voters' lists, real estate records, motor vehicle records, warranty cards and surveys to profile households and consumer preferences.

On December 7, 2007, the Federal Court announced a new Practice Direction for proceedings under the Patented Medicines (Notice of Compliance) Regulations (NOC Regulations).

The Canadian Intellectual Property Office (CIPO) and the United States Patent and Trademark Office (USPTO) recently agreed to establish a new cooperative initiative called the Patent Prosecution Highway (PPH) on a one-year trial basis beginning in early 2008. The PPH will serve to fast-track patent applications in one country when a patent has been granted in another.

On December 3, 2007, the Supreme Court of Canada dismissed an application brought by Novopharm for leave to appeal the ruling in Novopharm Limited v Janssen-Ortho Inc 2007 FCA 217 (see the E-TIPS® article, "Justice Hughes' List of Obviousness Factors Confirmed by the Federal Court Of Appeal", Vol 6, No 2, July 18, 2007).

On December 13, 2007, the Therapeutics Products Directorate (TPD) of Health Canada released its final publication of the Guidance Document: Patented Medicines (Notice of Compliance) Regulations (Guidance). The Guidance outlines the roles and responsibilities of first persons (brand manufacturers), second persons (generic manufacturers) and the TPD's Offices of Patented Medicines and Liaison (OPML) under the Patented Medicines (Notice of Compliance) Regulations (NOC Regulations), some of which are highlighted below. Responsibilities of First Persons T

Bill C-27, introduced by Justice Minister Nicholson on November 21, 2007, would create new criminal offences for dealing with identity information of other people where the information might be used to commit a crime. It also makes it a crime to possess or sell actual or purported government identity documents, such as health insurance cards. Once enacted, this Bill will take precedence over the much less ambitious Private Member’s Bill C-299, which was just passed by the House of Commons on October 16, 2007.

Louis-René Haché of Montreal made history a few weeks ago by being the first person to be charged under Canada's new anti-camcording law (section 432 of the Criminal Code).

In July, 2007, the French Minister of Culture and Communication appointed an independent commission (the Olivennes Commission) led by Denis Olivennes to study ways of combating illegal downloading and the development of legal musical, audiovisual and cinematographic works. On November 23, 2007, the Olivennes Commission presented its report, entitled "Le développement et la protection des oeuvres culturelles sur les nouveaux réseaux".

The Education and Labor Committee of the US House of Representatives has approved draft legislation linking federal financial aid for higher education institutions with anti-piracy initiatives. The majority of the provisions in the College Opportunity and Affordability Act of 2007(Bill HR 4137) (Bill) are aimed at increasing access to higher education.

Chapter 17 of the Canadian Manual of Patent Office Practice (MOPOP), a guide on the procedures and practices relating to the prosecution of patent applications in Canada, has been amended. CIPO is seeking comments and has made the new chapter available for review until January 25, 2008.

The Business Software Alliance (BSA) has come under fire recently for its tactics in enforcing the software licenses of its members. The most recent criticism was triggered by an analysis by The Associated Press and stems from a BSA practice of targeting small businesses alleged to be using unlicensed software, and making threats of large fines in order to encourage settlement payments.