E-TIPS

The Judiciary Committee of the US Senate has unanimously approved a version of the Patent Reform Act of 2007 with a provision that would eliminate liability of financial institutions for infringement of patents by a cheque collection system. The bill would directly impact many pending infringement suits filed by DataTreasury Corporation ("DataTreasury") against various banks and other financial institutions.

On February 5, 2008, the California Supreme Court heard oral arguments in the patent contract case City of Hope National Medical Center v Genentech Inc (S129463). The case involves an appeal of a $500 million damage award against Genentech, for breach of a fiduciary relationship arising out of a 32-year old patent agreement. The central issue in the appeal is whether the confidential information in patent agreements changes the agreements into fiduciary relationships.

User Fees in Canada: A Review of Current and Proposed Fees (PDF Format) By Sue Diaz

Several major corporations including IBM, Sony, Pitney Bowes, and Nokia have donated a number of patents for eco-friendly inventions to an international patent-sharing project called the “Eco-Patent Commons”.

In a recent UK decision of the Patents Court, Astron Clinica Ltd v The ComptrollerGeneral of Patents, Designs and Trade Marks, Justice Kitchin ruled that the UK Intellectual Property Office (UKIPO) cannot automatically reject claims to computer programs.

Within a period of less than a month, two decisions handed down in British Columbia, one by the British Columbia Supreme Court (Court) and the other by a federal body, the Canadian Human Rights Tribunal (Tribunal), remind us not only that the Internet can be used for ill, as well as for good, but that Canada's "hate crime" legislation can be both effective and varied in its mode of application.

Telefónica de España SAU (Telefónica), an ISP, refused to disclose personal information identifying suspected infringers of intellectual property to Productores de Música de España (Promusicae), a music rights holders organization. Promusicae obtained an order from the Spanish Court requiring Telefónica to disclose the identities and addresses of Internet subscribers using the KaZaA peer-to-peer file exchange program to share unauthorized musical and audiovisual recordings.

In the near future, court hearings in the Australian state of New South Wales (NSW) will be going high-tech. The state plans to roll out "JusticeLink", an AUS $48 million computer system, to all of its courts by 2009. The system will allow simple procedural hearings to take place online. Trials and committal hearings will continue to be heard in courtrooms.

At a Civil Liberties Committee hearing on Data Protection on the Internet, the European Union Data Protection Working Party (Working Party), comprised of national data-protection commissioners, has confirmed its view that Internet Protocol (IP) addresses are personal data, defined as "any information relating to an identified or identifiable natural person".

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).