Canadian Technology & IP Law : Canadian Technology Lawyers & Attorneys : Stikeman Elliott Law Firm : IP Law in Toronto, Montreal, Calgary, Ottawa & Vancouver

On October 29, 2009, the Supreme Court of Arizona overturned the Court of Appeals’ decision in the e-discovery case of Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009). It held that when a public entity maintains a public record in electronic format,then the electronic version, including any embedded metadata, is subject to disclosure under public records laws.

The public record request arose out of the underlying employment discrimination litigation between the city and David Lake, a Phoenix police officer, who sought the production of metadata associated with notes he suspected were backdated. The request was denied by the city, who contended that the metadata was not a public record.  The refusal was upheld on appeal.

• Comments
• Trackbacks
• Email This
• Print

An Ontario Court judge recently rejected Royal & Sun Alliance Insurance Co.’s bid to see a woman’s Facebook profile in a case where the woman was suing to recover for injuries suffered in a car crash. The judge stated that the plaintiff’s privacy would be respected unless the defendant could prove a legal entitlement to the ruling. The judge gave the defendant an opportunity to cross-examine the plaintiff to try to prove a legal entitlement, but refused to do anything further. This decision represents a slightly stronger stance towards privacy than the Leduc v. Roman case discussed in an earlier post. 

• Comments
• Trackbacks
• Email This
• Print

In response to inquiries from organizations seeking clarification as to the application of privacy laws in the private sector workplace during the H1N1 pandemic, the Office of the Privacy Commission of Canada, together with the Office of the Information and Privacy Commission for British Columbia and the Office of the Information and Privacy Commission of Alberta published a guidance document on the issue.

The federal Personal Information Protection and Electronic Documents Act, and the provincial privacy legislation in Alberta, British Columbia and Quebec apply in the usual way in the event of “non-emergency” situations. However, in the event of the declaration of a public emergency, the powers to collect, use and disclose personal information to protect the public health may be very broad. Orders issued under public health legislation could require the collection, use and disclosure of certain information relating to employees and customers, which collection would not be impeded by private sector privacy legislation.

The guidance document encourages employers to provide employees with information on prevention rather than asking employees personal questions that go beyond what is reasonable and minimally necessary.

• Comments
• Trackbacks
• Email This
• Print

Canada's federal telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), has recently released a regulatory policy decision clarifying its legislative authority within Canada's Telecommunications Act to police discriminatory internet traffic management practices by ISPs and its position in favour of net neutrality. In addition, this decision also enhances the protection of personal information collected by ISPs by seeking to “impose a higher standard than that available under PIPEDA in order to provide a higher degree of privacy protection for customers of telecommunications services.”

• Comments
• Trackbacks
• Email This
• Print

On September 18, 2009, many long-awaited amendments to Canada's Bankruptcy and Insolvency Act (BIA) and Companies' Creditors Arrangement Act (CCAA) came into force. One of these new provisions will help protect intellectual property (IP) licensees in the event of the bankruptcy of their licensors.

Under current Canadian common law, it is generally accepted that a trustee in bankruptcy can disclaim some kinds of contracts entered into by the bankrupt debtor, in order to promote the successful restructuring of the debtor's business. It has been unclear, however, whether or not IP license agreements are among such contracts. The issue has been raised, but never settled, in a number of Canadian cases. A discussion of these cases can be found in Stikeman Elliott's February 2009 Intellectual Property Update.

• Comments
• Trackbacks
• Email This
• Print

On September 3, 2009, Amazon.com filed an appeal to the Federal Court in respect of the decision of the Commissioner of Patents to refuse to grant a patent pursuant to Canadian Patent Application No. 2,246,933 (the '933 Application).

The '933 Application involved the use of "cookies" (which save an IP address and personal information) to allow an Internet shopper to click just once to purchase an item of interest. Amazon.com claimed that their cookies were a new and non-obvious method to hasten and simplify online ordering. The Examiner had initially rejected the application on the grounds that the claimed invention was obvious (and therefore not inventive) and also that the application sought to patent unpatentable subject matter.

• Comments
• Trackbacks
• Email This
• Print

In June 2009, the Federal Court of Appeal (FCA) upheld the Federal Court of Canada's decision in the patent infringement case of Laboratoires Servier v. Apotex Inc., ([2008] F.C.J. No. 1094, aff'd [2009] FCA 222). In its decision, the Court dismissed a counterclaim by the defendant, Apotex, alleging that the settlement agreement leading to the relevant patent's issuance constituted a conspiracy to lessen competition and an offence under Canada's Competition Act. Although in this case the Court held that the defendant had failed to support its allegations with sufficient evidence, it specifically contemplated that under the right circumstances, a patent settlement agreement might amount to a conspiracy under the Competition Act.

• Comments
• Trackbacks
• Email This
• Print

The Canadian Intellectual Property Office (CIPO) has entered into agreements with the Japan Patent Office(JPO), the Danish Patent and Trademark Office(DKPTO) and the Korean Intellectual Property Office (KIPO) to launch two-year pilot Patent Prosecution Highway (PPH) programs, each commencing October 1, 2009.

These pilot programs can be compared to the PPH pilot program between CIPO and the United States Patent and Trademark Office initiated on January 28, 2008 and extended for a period of two years ending on January 28, 2011.

• Comments
• Trackbacks
• Email This
• Print