E-TIPS

On July 10, 2020, in ViiV Healthcare ULC v Canada (Health), 2020 FC 756, the Federal Court of Canada (the Court) found the decision of the Minister of Health (the Minister) denying a Certificate of Supplementary Protection (CSP) in respect of Canadian Patent No. 2,606,282 (the 282 Patent) and the drug JULUCA® unreasonable. The matter was remitted to the Minister for redetermination.

On July 10, 2020, the Supreme Court of Canada (SCC), in Reference re Genetic Non-Discrimination Act (2020 SCC 17), upheld the Genetic Non-Discrimination Act (the Genetic NDA) as constitutional, acknowledging an individual’s right to privacy over genetic information.

On July 16, 2020, the Court of Justice of the European Union (CJEU) released its decision in Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (C-311/18), declaring the EU-US Privacy Shield to be invalid on the basis that it does not provide adequate protection for transferring personal data from the European Union (EU) to third parties in the United States (US).

On July 17, 2020, the government of Ontario (the government) announced the province’s first Intellectual Property Action Plan (the Action Plan). The Action Plan is intended to drive Ontario’s competitiveness by prioritizing intellectual property (IP) generation, protection and commercialization, especially as Ontario recovers from the economic downturn caused by the COVID-19 pandemic. The unveiling of the Action Plan coincides with the government’s announcement of a second round of research projects supported through the Ontario COVID-19 Rapid Research Fund.

On July 21, 2020, the Office of the Privacy Commissioner of Canada published a news release and an open letter to video teleconferencing companies (VTC companies) outlining the obligation to comply with data protection and privacy laws and responsibly handle the personal information of its users.

On July 3, 2020, the Canadian Intellectual Property Office released a Practice Notice clarifying Patent Office practices with respect to requests to record a transfer under s. 49 of the Patent Act and s. 126 of the Patent Rules, requests to record a change of name under s. 125 of the Patent Rules, and requests to register documents under s. 124 of the Patent Rules.

On June 29, 2020, the Federal Court of Canada (the Court) issued its decision in Innovative Medicines Canada v Canada (Attorney General), 2020 FC 725, challenging the validity of certain provisions of the Regulations Amending the Patented Medicines Regulations (Additional Factors and Information Reporting Requirements) SOR/2019-298 (the Amendments) set to come into force on January 1, 2021.

On July 6, 2020, the Office of the Privacy Commissioner of Canada (OPC) announced that US-based company, Clearview AI, has advised the OPC that it will cease offering facial recognition services in Canada. This includes the indefinite suspension of Clearview AI’s contract with the Royal Canadian Mounted Police (RCMP), its last Canadian client.

On June 30, 2020, the US Supreme Court (the Court) released its decision in United States Patent and Trademark Office et al v Booking.com BV, 591 U. S. __ (2020), holding that the combination of the generic word “Booking” and the domain “.com” was a protectable trademark.

On June 29, 2020 the Office of the Privacy Commissioner of Canada (OPC) announced that it and the provincial privacy commissioners of Alberta, British Columbia and Québec will commence a joint investigation into a Tim Hortons mobile ordering application after reports were brought to light by the media concerning its improper collection and use of personal information, particularly users’ geolocation data as they go about their daily activities.

On July 8, 2020, the Canadian Intellectual Property Office (CIPO) announced that they are launching a pilot program allowing small entities (universities, or businesses employing 50 or fewer employees) to request accelerated examination at no additional cost of patent applications for medical products and processes supporting the COVID-19 health response.

On June 25, 2020, the Office of the Information and Privacy Commissioner of Ontario (Ontario IPC) and the Office of the Information and Privacy Commissioner for British Columbia (BC OIPC) announced that their joint investigation into LifeLabs’ 2019 privacy breach found that LifeLabs failed to protect Canadians’ personal health information.

On June 26, 2020, the Supreme Court of Canada (the SCC) issued its decision in Uber Technologies Inc v Heller, 2020 SCC 16 and dismissed the appeal brought by Uber Technologies Inc. (Uber) on the grounds that the arbitration clause in the arbitration agreement between Uber and its drivers is “unconscionable and therefore invalid”.

On June 18, 2020, Prime Minister Justin Trudeau and Ontario Premier Doug Ford announced the rollout of a new, made-in-Ontario app called COVID Alert made to alert Canadians when they may have been exposed to COVID-19. 

On June 12, 2020, the Quebec government introduced Bill 64, An Act to modernize legislative provisions as regards the protection of personal information (the Bill). The Bill proposes to modernize the current framework and obligations that private and public sector entities face in the context of protecting personal information. The Bill proposes a number of amendments to the Province’s Act respecting the protection of personal information in the private sector (the Private Sector Act). Such amendments include:

On June 9, 2020, the Office of the Privacy Commissioner of Canada (OPC) announced the results of its 2019-20 survey of Canadian businesses on privacy-related issues. The OPC commissioned the survey to understand the type of privacy policies and practices that businesses have in place, the businesses’ compliance with the law, and their awareness and approaches to privacy protection. The telephone survey was conducted in late 2019 with 1,003 business representatives across Canada.

On June 11, 2020, the Federal Court of Canada (the Court) issued its decision in Toys “R” Us (Canada) Ltd v Herbs “R” Us Wellness Society (2020 FC 682), holding that use of the HERBS R US design mark was likely to depreciate the goodwill in the registered trademark TOYS R US & Design, contrary to section 22 of the Trademarks Act (the Act).

On June 5, 2020, the Canadian Federal Court of Appeal (the Court) in 3510395 Canada Inc v Canada (Attorney General) 2020 FCA 103, unanimously upheld the constitutionality of Canada’s Anti-Spam Legislation (CASL) which regulates, among other things, the sending of commercial electronic messages (CEMs), such as e-mails and text messages, to protect individuals and businesses against spam and other electronic threats.

On June 1, 2020, the Canadian Patented Medicine Prices Review Board (PMPRB) announced that the coming into force date for the amended Patented Medicines Regulations (Regulations) will be delayed until January 1, 2021.

On May 26, 2020, the Canadian Federal Court of Appeal (FCA) dismissed an appeal by Bedessee Imports Ltd. (Bedessee) from a decision of the Federal Court dismissing an application brought by Bedessee to expunge GlaxoSmithKline Consumer Healthcare (UK) IP Limited (GSK)’s HORLICK’S and HORLICKS trademarks (the Marks) (2020 FCA 94).