E-TIPS

On May 5, 2021, the Biden administration announced its position to support a temporary global waiver in intellectual property (IP) protection for COVID-19 vaccines to expand vaccine manufacturing and distribution around the world.

On April 24, 2021, the proposed Regulations Amending the Patented Medicines (Notice of Compliance) Regulations (the proposed Amendments) were published in Canada Gazette, Part I that intend on expanding the definition of ‘claim for medicinal ingredient’ under the Patented Medicines (Notice of Compliance) Regulations (the Regulations). This change would permit patents containing a claim related to a different salt form of an approved medicinal ingredient to be eligible for listing on Canada’s patent register.

On April 9, 2021, the Federal Court of Canada (the Court) issued its decision in Boulangerie Vachon Inc. v Racioppo, 2021 FC 308, in which it granted Boulangerie Vachon Inc., Vachon Bakery Inc., and Canada Bread Company, Limited (collectively, the Plaintiffs) damages for infringement of the trademark HOSTESS.

On April 19, 2021, the Government of Canada announced its 2021 budget (Budget 2021) with goals to finish the fight against COVID-19, ensure a strong economic recovery, and position Canada for a prosperous future. To accomplish its objectives, the government has set aside funding for proposed expenditures in the areas of intellectual property (IP) and technology.

On April 14, 2021, in Canada (Health) v Glaxosmithkline Biologicals SA, 2021 FCA 71, the Federal Court of Appeal of Canada (FCA) interpreted the Certificate of Supplementary Protection Regulations (the CSP Regulations) for the first time. Overturning the Federal Court decision, the FCA held that the decision of the Minister of Health (the Minister) to refuse the issuance of a Certificate of Supplementary Protection (CSP) in respect of the Canadian Patent No. 2,600,905 (the 905 Patent) and the SHINGRIX® vaccine was reasonable.

On April 21, 2021, the European Commission (EC) released a proposal for a regulation (the Draft Regulation) laying down harmonised rules on artificial intelligence (AI) aimed to ensure the protection of fundamental European Union (EU) rights and safety of AI system users, as well as trust in the development and uptake of AI.

On April 14, 2021, the Government of Canada (the Government) launched a consultation on whether the copyright framework for online intermediaries, (entities that facilitate access to copyright-protected content) appropriately reflects the evolving digital world. The Government recognizes the evolution of the dissemination and use of copyright-protected content on the internet through proliferated and diversified online intermediates, and considers whether the extent to which the current copyright framework for online intermediaries still achieves its underlying objectives, including protecting and encouraging the use of copyright-protected content online, safeguarding individual rights and freedoms in an open internet and facilitating a flourishing digital market.

On April 15, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) issued a news release outlining a number of measures that Canada’s dominant telecommunication service providers must implement in order to promote sustainable competition and affordable options for Canadians.

On April 5, 2021, the Supreme Court of the United States (SCOTUS) issued its decision in Google LLC v Oracle America Inc, 593 US ___ (2021), holding that Google’s copying, and incorporation into its Android mobile platform, of approximately 11,500 lines of code from the Oracle-owned application programming interface Java SE (the API) was not copyright infringement and constituted fair use. The decision, delayed by a year due to the COVID-19 pandemic, marks the end of a decade-long litigation between the tech giants, in which Oracle initially claimed damages in the amount of nearly 9 billion USD for Google’s alleged copyright infringement (previously reported by the E-TIPS® Newsletter here).

On April 3, 2021, Business Insider reported that information relating to over 530 million Facebook accounts had been made publicly available online. It is estimated that 3.49 million accounts belong to Canadians and the leaked data included names, locations, birthdates, email addresses, and other identifying information.

On March 24, 2021, the Office of the Privacy Commissioner of Canada (OPC) published its submission in response to the Department of Justice’s public consultation on modernizing the Privacy Act, Canada’s public sector privacy law, which has not been substantially amended in nearly 40 years.

On March 15, 2021, the Ontario Court of Appeal (the Court), in Family and Children’s Services of Lanark, Leeds and Grenville v Cooperators General Insurance Company, 2021 ONCA 159, reversed the lower court’s decision that found that Co-operators General Insurance Company (Co-operators) had a duty to defend Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc. (Laridae) against two claims in relation to a cyber hack.

On March 29, 2021, the Canadian Intellectual Property Office (CIPO) launched a consultation on proposed changes to the refusal and review process for industrial design decisions. CIPO’s Discussion Paper states that the proposed changes will “make it easier to ensure consistency of final refusals” and would increase the timeliness of final decisions.

On March 13, 2021, the Government of Canada published the College of Patent Agents and Trademark Agents Regulations, Rules Amending the Patent Rules, and Regulations amending the Trademarks Regulations (collectively, the proposed Regulations) for public consultation. The proposed Regulations will implement the College of Patent Agents and Trademark Agents Act (the Act), which received royal assent in 2018, and transfer authority for agent regulation from the Canadian Intellectual Property Office (CIPO) to the College of Patent Agents and Trademark Agents (the College).

On March 4, 2021, the Federal Court of Appeal of Canada (FCA) issued its decision in Apotex Inc. v. Janssen Inc., 2021 FCA 45, further clarifying the test for obviousness to try in patent litigation proceedings.

On March 23, 2021, the UK Intellectual Property Office (IPO) announced the results of its open consultation on the impact of artificial intelligence (AI) on intellectual property (IP) policy covering patents, copyright, trademarks, designs and trade secrets. The consultation was carried out in late 2020, with a total of 92 responses received from numerous stakeholders, including IP attorneys, industry associations, tech sectors and other creative industries.

On March 15, 2021, YouTube announced the rollout of its new screening system, Checks, which automatically scans videos for potential copyright claims and ad-suitability issues prior to the video being published on the platform.

On March 11, 2021, a digital art piece in non-fungible-token form entitled “Everydays – The First 5000 Days” by digital artist Beeple was sold by Christie’s for a record 69.3 million USD in an online auction that garnered hundreds of bids over a two week period. The sale brought the rise of non-fungible token sales to global attention, as the digital art auction, the first of its kind held by Christie’s, not only set the record for the highest auction price for a digital work, but the third-highest price achieved for a living artist ever.

On March 4, 2021, the Supreme Court of Canada denied an application for leave to appeal brought forward by 3510395 Canada Inc. (Compufinder) for two Federal Court of Appeal decisions that unanimously upheld the constitutionality of Canada’s Anti-Spam Legislation (CASL). This dismissal of the application for leave ends a run of challenges brought forth by Compufinder claiming that the legislation is unconstitutional because it falls outside of Parliament’s legislative power and it violates sections 2(b), 7, 8 and 11 of the Canadian Charter of Rights and Freedom (the Charter).

On December 23, 2020, the federal government published significant amendments to the Food and Drug Regulations (FDR) and Medical Devices Regulations (MDR) in Canada Gazette, Part II. These amendments build on Bill C-17, Vanessa’s Law, which was passed in 2014 to improve Health Canada’s ability to obtain post-market safety information for therapeutic products.