E-TIPS

In a recent case in the Ontario Superior Court of Justice, Autosurvey Inc v Prevost et al, the plaintiff (Autosurvey) took the surprising and unusual step of hacking into the server of the defendant (Prevost) while legal proceedings were pending between them.

In its judgment dated October 20, 2005 in a patent dispute between Synthon BV (Synthon) and Smithkline Beecham plc (SkB) regarding the invention of paroxetine methanosulfate, the House of Lords found that Synthon's earlier unpublished application did anticipate SkB's patent, making the latter invalid. The decision restored the original trial decision by the High Court, later reversed by the Court of Appeal.

In a case of first impression (Regatos v North Fork Bank), the New York State Court of Appeals has upheld a lower court finding that a foreign customer who has so-called "hold mail" arrangements with his New York bank (allowing the bank not to mail account statements to the customer until requested to do so) is not precluded from claiming that the bank improperly paid on fraudulent cheques merely because the bank's standard form customer agreement requires the customer to notify the bank of account irregularities immediately.

The federal Privacy Commissioner has found that a Canadian bank that outsourced the processing of credit card transactions to a US-based service provider complied with the requirement to provide a "comparable level of protection" under the Personal Information Protection and Electronic Documents Act (PIPEDA).

Another non-government organization is calling for more open intellectual property systems worldwide. The UK-based Royal Society for the Encouragement of Arts, Manufacture and Commerce (RSA) has released a statement called the Adelphi Charter which outlines how the international community could and should change domestic and international intellectual property laws to better serve the public interest.

In the spirit of the Great Library of Alexandria, Google Inc (Google) has embarked on an ambitious program to collect as much as possible of the world's book knowledge and make it full-text searchable via the Internet. This program, called the Google Print program, has two components.

By administrative order from the Federal Communications Commission (FCC), a 1994 law, the Communications Assistance for Law Enforcement Act (CALEA), has been extended to a number of intermediate agencies such as libraries, airports and universities. The effect will be to require these institutions to alter their networks so that enforcement agencies can intercept communications to their members who customarily make their Internet connections via the institutions' facilities.

The European Union recently proposed harmonized data retention rules requiring telecommunication service providers to collect and store telephone traffic data for up to one year and Internet traffic data on all subscribers for up to six months. The data would be accessible by law enforcement agencies from other member states on request. Currently, the majority of the European Union's 25 member states have no mandatory data retention legislation, while half of those who do have such policies have not put in place all the laws needed to enforce the rules. Those that do have data retention schemes differ in their required retention scope and period.

The United States Patent and Trademark Office (USPTO) recently announced that it had awarded contracts under its Patent Cooperation Treaty (PCT) search pilot program to Landon IP Inc, and IP Data Miner Inc. According to the USPTO's news release, the pilot program will determine "whether searches by commercial entities can maintain the accuracy and quality standards for searches conducted by the USPTO during the patent examination process". The goal is to help the USPTO find an effective solution to deal with its patent examination backlog.

The United Nations Working Group on Internet Governance (WGIG) has issued a report calling for an end to the pre-eminent position of the US in the management of the Internet.

The US Senate recently introduced an amended version of the Personal Data Security and Privacy Act, a bill which would establish minimum security and privacy requirements and enhance penalties for security breaches involving personal data. The bill was first introduced in June 2005 by Senator Arlen Specter, a Pennsylvania Republican, and Senator Patrick Leahy, a Vermont Democrat, in response to a series of high-profile security breaches involving firms like ChoicePoint, Bank of America, PayMaxx and LexisNexis.

In a judgment released September 15, a three-judge panel of the Versailles Court of Appeal has unanimously dismissed an appeal by SNC AOL France (AOL) from a lower court decision handed down in 2004 in favour of a French consumer protection body, Union Fédérale des Consommateurs "Que Choisir" (UFC), relating to AOL's online subscriber contract in France (AOL Contract).

In a controversial move "” as an adjunct to updating the Rome Convention of 1961 to address technological changes "” the World Intellectual Property Organization (WIPO) is seeking to create a new Broadcasting and Webcasting Treaty (Treaty). The proposed Treaty would expand the rights of broadcasters to include copyright-like protection over their broadcasts, and would give webcasters equivalent rights.

In a news release dated September 28, 2005, the University of California announced that the USPTO had reaffirmed the validity of the web-browser technology patent (US Pat No 5,838,906 – the "'906 Patent") held by its subsidiary, Eolas Technology Inc (Eolas). The "˜906 Patent relates to interactive programs within browsers that make "plug-ins" and "applets" possible.

The Ontario Court of Appeal has overturned a controversial lower court decision finding jurisdiction in a lawsuit against the Washington Post by a United Nations official. The appellate Court held that there was no substantial connection with Ontario. When the Washington Post articles were published in January 1997, Cheickh Bangoura was employed by the United Nations in Africa.

Earlier this month, Privacy Commissioners from 40 countries – including Canada – met in Switzerland for the 27th International Conference of Data Protection and Privacy Commissioners (ICDPPC).

On September 1, 2005, the US Court of Appeals for the Eighth Circuit ruled (Blizzard Entertainment Inc v Jung et al, No 04-3654) on the "fair use" right to reverse engineer software and create programs that are interoperable with older ones.

Dr Kai-Fu Lee (Lee) had been a Vice-President of Microsoft since August, 2000 and was a party to a non-competition agreement. While still on a sabbatical, in July 2005, Lee was contacted and hired by Google as Vice-President of Engineering and as President of Google China.

Along with just about every product, now it appears that phone records are being sold online. Recently, the US-based Electronic Privacy Information Center (EPIC) filed a petition with the Federal Communications Commission (FCC) urging it to establish more stringent security standards for telecommunication carriers in order to protect its customers' personal information. In its petition, EPIC argues that the provisions of the current US Telecommunications Act do not adequately protect consumers from unauthorized third parties obtaining access to records and exploiting such data for personal and financial gain.

In Symbol Technologies Inc et al v Lemelson Medical Educational & Research Foundation, 04-1451, the US Court of Appeals for the Federal Circuit upheld a decision that prevents patent holders from exercising their rights if they have taken an excessively long time to complete the filing process.