E-TIPS

In a period of unusual activity in hearing intellectual property cases, the Supreme Court of Canada has granted leave to appeal in a copyright case which raises a range of interesting issues. Primarily, the case involves parallel imports or "gray goods" and, in particular, raises the extent to which authorized distributors of imported products can use the copyright in packaging materials to block genuine but unauthorized products from entering Canada for sale.

Rodgers (R) was convicted of a sexual offence. Before R's prison term was completed, the Crown obtained a warrant from a judge on an ex parte application to permit the prison authorities to take DNA samples from R. R applied to another judge, unsuccessfully, for a declaration that the issue of the warrant was unconstitutional, in part because the authorizing warrant was obtained without notice to R. R appealed to the Ontario Court of Appeal, which held that R ought to have been given notice of the hearing to obtain the warrant. The Crown appealed to the Supreme Court of Canada.

The most recent clash of the two iconic apples - Apple Corps Limited, of Beatles' fame (Apple Corps) and Apple Computer Inc - over the field of use of the Apple trade-mark was recently resolved in London when the High Court dismissed the action brought by Apple Corps.

The Canadian Food Inspection Agency (CFIA) received a request under the Access to Information Act (Act) for access to certain records pertaining to the respondent, H J Heinz Co of Canada Ltd (H J Heinz). CFIA concluded that some of the records might contain confidential business or scientific information and asked H J Heinz to make representations as to why the information should not be disclosed. After reviewing the representations, CFIA concluded that the records should be disclosed, subject to certain redactions.

In order to give the police stronger tools against terrorism and pornography, a relatively obscure piece of British legislation may soon be implemented to force decryption of information.

A coalition of leading Canadian musicians has entered the copyright reform debate with a call for the government not to facilitate the prosecution of file down-loaders nor to provide legal support for digital locks. The Canadian Music Creators Coalition (CMCC) advocates elimination of the current statutory damages provision of the Copyright Act, rejection of new provisions to prevent circumvention of technological protection measures, and the broadening of the "fair dealing" provisions to become closer to the US "fair use" approach. The CMCC implicitly rejects the private copying levy to the extent it relates to consumers copying music they have paid for, but it supports the levy in principle as one method of compensating artists for file sharing.

Following the NTP and RIM saga, another recent US case has considered whether a patent claim for a method is infringed when part of the method has taken place outside the US. In Zoltek Corporation v United States, the US Court of Appeals for the Federal Circuit considered infringement of a patented method of manufacturing silicon carbide fibre sheets. The patent owner, Zoltek Corporation (Zoltek), alleged that the US Government had infringed Zoltek's patent through its contractor Lockheed Martin. The allegedly-infringing fibre sheets were to be included in the manufacture of F-22 fighter aircraft and part of the claimed manufacturing process took place in Japan.

The ADR Center for .eu Disputes, attached to the Czech Arbitration Court, has resolved its first domain dispute. The Czech Arbitration Court has the contract to decide all .eu domain registration disputes, including challenges to applications that have been validated during the sunrise period.

Recently, the Federal Communications Commission (FCC) issued a mandatory order requiring broadband Internet providers and Internet phone companies to build wiretap access for police surveillance. This is to be achieved through mandatory centralized wiretapping hubs and must be in place by May 14 th, 2007.

Sandoz, the generics subsidiary of Novartis, has received approval for its Omnitrope human growth hormone product, a copycat version of Pfizer's Genotropin, making Sandoz the first company to win approval of a biosimilar in the EU. The Australian Therapeutic Goods Administration approved Omnitrope in September 2004, and the product has been on the Australian drug market since November 2005.

The United States Trade Representative (USTR) has conducted its 2006 "Special 301" annual review on Intellectual Property Rights (IPR) protection in 87 countries, as it is required to do under the provisions of the Trade Act of 1974 (Act). The mandate of the USTR under the Act is to review and monitor those countries believed to provide deficient IPR protection or inadequate market access, with the possible consequence of trade sanctions.

Two drawings from an unpublished Canadian file history were found to be citable prior art, in a recent patent case before the US Federal Circuit Court of Appeals. In Bruckelmyer v Ground Heaters Inc., decided on April 20, 2006, the Court considered whether documents from a Canadian file history could be considered "printed publications" under §102 (b) so as to anticipate the claims of two US patents.

On April 12, 2006, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that mobile television broadcasting services operated by Bell Mobility Inc, TELUS Mobility and Rogers Wireless Inc, in conjunction with MobiTV Inc (MobiTV), fall within the Exemption Order for New Media Broadcasting Undertakings (New Media Exemption Order) and are exempt from federal regulation, including content and Canadian ownership rules.

Apple Corps Ltd and Apple Computer have once again clashed over the field of use of the Apple Computer trade-mark. Apple Corps, which is owned by the former Beatles and their heirs, has argued that while Apple Computer is entitled to produce programs like the iTunes Music Store, it should stay out of the music business if it uses the mark, a cartoon apple with a neat bite out of its side. Apple Corps' logo is a green Granny Smith apple.

The Organization for Economic Co-operation and Development (OECD) has released a study of broadband Internet use as of December, 2005.

A recent spate of US litigation has explored property rights in the arrangement of human cadavers, posed in life-like positions. The bodies are partially stripped of skin and muscle tissue to reveal layers below, and are shown skateboarding, dancing and in other poses. The cadavers have been preserved through a process of polymerization called "plastination".

According to news reports, amendments to the controversial Digital Millennium Copyright Act (DMCA) are being crafted with the support of the Bush Administration and will shortly appear before the House of Representatives Judiciary Committee. Advance comments from politicians from both sides indicate that a battle is shaping up over this next round of copyright reform.

A watershed Canadian copyright case recently settled, leaving open the question whether jewellery is a work of art protected by the Copyright Act, as are paintings, music and works of literature, or whether it is merely a "useful article" with a utilitarian function. In the United States, the issue has been resolved "” jewellery is an artistic work and therefore entitled to copyright protection. In both Canada and the US, copyright has a significantly longer term than design protection.

The US District Court for the Southern District of New York has dismissed trade-mark infringement allegations made by Merck & Co Inc (Merck) against several Canadian online pharmacies. The pharmacies purchased "Zocor", the name of Merck's cholesterol reduction drug, as a keyword to trigger the display of links to the online pharmacies' web sites on search result web pages.

In a recent case, the US Court of Appeals for the 7th Circuit applied a federal anti-hacker law, the Computer Fraud and Abuse Act (CFAA), to an employee's use of trace remover tools to delete data from a laptop provided to him by his employer, a real estate business, International Airport Centers LLC (IAC).