E-TIPS

Even though the Chinese government strictly monitors Internet usage and bans content that it finds to be politically or morally offensive, it appears that nudity, profanity, illegal gambling, and pirated copies of music, books, and movies are spreading throughout China-based web servers.

After much contentious debate both inside and outside Congress, by a vote of 220-175 the lower chamber has passed a Patent Reform Bill, HR 2795. The debate leading up to the vote was marked by shifting alliances between a variety of groups and industry sectors. Overall, the two camps that seemed most identified with a single position were the giant software providers such as Microsoft on one side (generally favouring the Bill) and drug and biotech companies on the other (generally opposing many of the Bill's provisions).

The US Federal Circuit established a standard for evaluating willful patent infringement in its 1983 decision Underwater Devices Inc v Morrison-Knudsen Co (Underwater Devices, 717 F2d 1380). The standard created an affirmative duty for potential infringers who had actual notice of another's patent rights, to exercise due care to determine whether their own actions infringed those rights. This requirement to exercise due care includes a duty to obtain competent legal advice before initiating any possibly infringing activities.

The European Commission (EC) recently issued a consolidated jurisdictional notice (Notice) under Council Regulation (EC) No. 139/2004 (Merger Regulation), which includes guidance on the regulation of outsourcing and "full-function joint ventures". The Merger Regulation is applicable when there is a concentration of control or a change in control among two or more undertakings on a lasting basis.

In the August 14, 2007 edition of the Canadian Patent Office Record, the Canadian Intellectual Property Office (CIPO) stated its position that electromagnetic and acoustic signals are not themselves patentable subject matter because they are forms of energy, which CIPO considers to be distinct from matter. CIPO relies on its position that an “art” or a “process” must produce a result or effect by a physical or chemical action. CIPO similarly rejects the possibility that such signals per se could be a “machine”, a “composition of matter” or a “manufacture”, each of which CIPO asserts requires a physical embodiment which it claims signals lack. (This position has no impact on the patentability of process or apparatus inventions where signals are generated, transmitted, received or processed).

In a recent UK case in the Court of Queen's Bench, it was held that where contact lists on Outlook or other e-mail programs are stored on an employer's e-mail system and backed up by the employer, the contact list belongs to the employer. This applies even where no express limitation has been provided by the employer.

Earlier this month the High Court of Chennai rejected Swiss drug manufacturer Novartis's claim that section 3(d) of the Indian Patents Act was non-compliant with the World Trade Organization's (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The Chennai Patent Office had previously rejected a patent on the crystalline form of Novartis's cancer drug imatinib mesylate (Gleevec), based on section 3(d).

The US Patent and Trademark Office (USPTO) published significant changes to the rules of practice for patent applications on August 21, 2007. The new rules, which take effect on November 1, 2007, will restrict the number of times applications can be examined and make it more expensive to prepare applications with more than 25 claims. The USPTO justifies the rule changes as necessary to deal with increasing volumes of patent applications by improving examination efficiency.

Within just 30 years, the Chinese city of Shenzhen has grown from a village into the most developed city in China with a population of 12.4 million people. Although it is one of the most prosperous cities in China, Shenzhen apparently suffers from widespread crime and prostitution. To combat illegal activities, 180,000 closed circuit TV (CCTV) cameras have already been installed throughout the city.

Symantec Corporation (Symantec), an Internet security firm, discovered a security breach on the job recruitment web site Monster.com after noting phishing e-mails were being sent to Monster.com users containing personal information of the users.

The question of so-called “grey marketing” or parallel imports continues to bedevil Canadian case law, having the potential to bring into play a challenging mixture of the law of contract, competition, trade-mark and copyright.

On July 4, 2007, the Ontario Court of Appeal struck down a municipal by-law passed by the City of Oshawa requiring pawnbrokers to collect, and share with police, detailed identifying information about persons selling second-hand goods.

The United States Visitor and Immigrant Status Indicator Technology program (US-VISIT) involves collecting digital fingerprints and photographs from most foreigners who visit the US. This biometric information is used to verify the identity of travelers, and is also checked against databases of known criminals and suspected terrorists.

The Canadian Internet Policy and Public Interest Clinic (CIPPIC) has asked the Canadian Competition Bureau to look into Google Inc's (Google) proposed acquisition of DoubleClick Inc (DoubleClick). Similar requests have been brought by other public interest groups before the US Federal Trade Commission (FTC) and the European Commission (For a discussion of the complaints brought before the FTC, seen earlier article in E-TIPS®, "Microsoft, AT&T, and Privacy Watchdogs Call for FTC Review of Google-DoubleClick Deal", Vol 5, No 21, April 25, 2007).

Cellphone subscribers of Rogers Wireless Inc (Rogers) who use their phones in the United States are subject to roaming charges which can range from 95 ¢ per minute to, in "excluded areas", as much as $4 per minute. A Quebec resident subscriber, Dr Muroff, used his Rogers mobile phone to make calls from Rhode Island and Maine, and was billed $4 per minute for these calls.

The summer of 2007 appears to be a hot one for reports of cybercrime. In a one-week period in early August, these five reports of convictions or charges relating to a wide spectrum of IP and Internet-related crime were noted:

By mistake, Dell Computer Corp (Dell) posted a number of prices for computers on its web site that were well below its regular price. Orders for about 500 of these mistakenly low-priced computers were placed over a two-day period until Dell corrected the mistake. Dell refused to honour the posted prices and, instead, offered the affected consumers discounts and other incentives.

In an earlier issue of E-tips ® (“BMW Achieves Divided Success in Federal Court Over Use of Single-Letter Trade-Marks”, Vol 5, No 19, March 28, 2007), we reported that the use of the marks M and M6 for Nissan’s Infiniti line of automobiles had been held by the Federal Court of Canada to constitute passing off, contrary to the Trade-marks Act (Act). The Court held that Nissan had created a likelihood of confusion between the sources of the wares by using M and M6, which BMW used as trade-marks in essentially the same trade and business.

In Canada, decisions of the Registrar of Trade-marks in opposition proceedings can be appealed to the Federal Court of Canada. The appeal is sometimes referred to as a de novo hearing, as the parties may adduce new evidence not before the Registrar. However, it was not clear whether the opponent may introduce new grounds of opposition on the appeal.

The Society of Composers, Authors and Music Publishers of Canada (SOCAN) is sending letters to hair salons across the country reminding them that under Canadian copyright law they are obliged to remit royalties for playing recorded music on their premises.