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

On June 21, 2010, Apple updated its privacy policy making it easier for the company, its partners and licensees to "collect, use, and share precise location data, including the real-time geographic location of your Apple computer or device."

Location-based services are becoming big business in everything from mobile advertising to on-demand multimedia services. Individuals can already use applications such as Clip Mobile’s coupon application to receive deals, sign into FourSquare to let their social networks know where they are, and get turn-by-turn navigation details on their smartphones.

Apple maintains that the location-based data collected by Apple will be anonymous, and will be used only to offer specialized location-based services to its users. 

The changes have prompted two Congressmen (Texas Republican Joe Barton, co-chairman of the House Bi-Partisan Privacy Caucus and Massachusetts Democrat Edward Markey) to write a joint letter to Apple CEO Steve Jobs, asking him to explain the changes made by the company to its user privacy policy by 12 July.

The changes will affect nearly all Apple-users as individuals must agree to the new privacy policy in order to download anything from the iTunes store. There currently appears to be no way to opt-out of this data collection without giving up the ability to download apps.

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A post on Slaw today contains a discussion of Alberta's Personal Information Protection Amendment Act, 2009 by Stikeman Elliott partner Wesley Ng. Specifically, Mr. Ng considers the new requirements respecting written policies and procedures and notification.

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Pfizer Canada Inc.  v. Ratiopharm Inc. and The Minister Of Health, 2010 FC 612

In an application under the Patented Medicines (Notice of Compliance) Regulations (“Regulations”), Pfizer sought an order prohibiting the Minister of Health (“Minister”) from issuing a notice of compliance (“NOC”) to Ratiopharm for a generic version of the drug REVATIO (containing the medicine sildenafil citrate (“sildenafil”) – the same medicinal ingredient contained in VIAGRA) until after the expiry of the 324 patent.  Ratiopharm alleged that the 324 patent was invalid for lack of soundly predicted utility, obviousness, and anticipation, and therefore that a generic version of REVATIO should immediately be allowed on the Canadian market for use in the treatment of pulmonary hypertension.  Ratiopharm was ultimately successful on the first two grounds.

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Apotex Inc. v. Syntex Pharmaceuticals International Inc. and Hoffman LaRoche Limited, 2010 FCA 155

Apotex was unsuccessful in its attempt to recover damages under section 8 of the 1993 version of the Patented Medicines (Notice of Compliance) Regulations (the “Regulations”) in relation to its naproxen slow release tablets. 

Background

In 1996, Syntex Pharmaceuticals International Inc. (“Syntex”) and Hoffman LaRoche Limited (“Roche”) were successful in obtaining an order under the Regulations prohibiting the Minister of Health (“Minister”) from issuing a notice of compliance (“NOC”) to Apotex with respect its naproxen slow release tablets until after the expiration of the 671 patent.  Apotex did not challenge the validity of the 671 patent at that time.  An appeal and cross-appeal from this decision was dismissed.  Apotex subsequently commenced an action seeking to impeach (invalidate) the 671 patent, and on April 19, 1999, the court found that Apotex’s formulation was non-infringing and that the 671 patent was invalid.  No appeal was taken from that judgment.

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Justine Whitehead

On May 25, 2010, the Canadian government introduced Bill C-28, an act that would establish the federal Fighting Internet and Wireless Spam Act (“FIWSA”), and make significant consequential amendments to other federal legislation, including Canada’s Competition Act; Telecommunications Act; and Personal Information Protection and Privacy Act (PIPEDA).

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Novopharm Limited v. The Minister of Health, 2010 FC 566

Novopharm filed an abbreviated new drug submission (ANDS) for a generic version of a drug, and represented to the Minister of Health that the ANDS did not attract the application of the Patented Medicines (Notice of Compliance) Regulations (and therefore the requirement to address patents listed on the patent register thereunder), since the patents were added after Novopharm had purchased the Canadian Reference Products and completed its clinical studies.  The Minister disagreed however, and required Novopharm to address a specific patent listed on the patent register before it would issue a notice of compliance (NOC) allowing Novopharm to commence marketing its drug.  Novopharm took issue with this decision, and accordingly commenced an application for judicial review of the Minister’s decision.  The application identifies the patents and drugs at issue by letter (i.e. Drugs A and B and Patents X and Y) in order to maintain confidentiality over the drug submission.

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Weatherford Canada Ltd. et al. v. Corlac Inc. et al., 2010 FC 602

Justice Phelan of the Federal Court of Canada released a 119-page judgment in respect of Canadian Patent No. 2,095,937 (the “’937 Patent”) relating to a seal assembly combination designed to fix the problem of leaking stuffing boxes on rotary progressive cavity pumps – a problem that has troubled all the heavy oil producers since the early 1980’s.

The plaintiffs alleged that the defendants had been directly infringing the ‘937 Patent since at least 1999 as a result of manufacturing and selling drive systems for rotary oil well pumps that included the patented assembly for restraining oil leakage.  They also alleged the Defendants had induced and procured others including their customers to infringe the '937 Patent.

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Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., et al., 2010 FC 581.

The plaintiff, Garford, appealed from an order of a prothonotary allowing bifurcation (separate trials) of the issue of liability from the issues of damages or accounting of profits in an action alleging patent infringement and breach of the Competition Act.

Bifurcation orders are only allowed where the Court is “satisfied, on a balance of probabilities, that bifurcation is more likely than not to result in the just, most expeditious and cost-effective determination of the proceeding.” Factors taken into account when determining whether bifurcation is appropriate include:

(i) The nature of the action and whether issues for the first trial are relatively straightforward

(ii) the extent to which the issues proposed for the first trial are interwoven with those remaining for the second;

(iii) whether a decision from the first trial regarding liability is likely to put an end to the action altogether;

(iv) the extent to which the parties have already devoted resources to all of the issues;

(v) the possibility of delay;

(vi) any advantage or prejudice the parties are likely to experience; and

(vii) whether the motion is brought on consent or over the objection of one or more of the parties.

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Merck v. Pharmascience, 2010 FC 510 (Federal Court).

In a decision rendered May 11, 2010 under the Patented Medicines (Notice of Compliance) Regulations, Justice Hughes of the Federal Court of Canada found Canadian Patent No. 2,173,457 (the ’457 Patent) to be invalid, and accordingly dismissed an application by Merck which sought to prohibit the Minister of Health from issuing a notice of compliance to Pharmascience, allowing Pharmascience to market its generic version of the medicine finasteride for treating male pattern baldness.

Claim 5, a “Swiss-type” claim, was the only claim at issue and was construed by the court as claiming “the use of finasteride for the preparation of a medicament adapted for oral administration useful for the treatment of male pattern baldness in a person and wherein the daily dosage is about 1.0mg.”Although this claim in the corresponding European patent had been upheld by the UK Court of Appeal, counsel for Pharmascience, Stikeman Elliott LLP, was successful in invalidating claim 5 on two grounds: double patenting and anticipation.

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Craig Collins-Williams

On June 2, 2010, Industry Minister Tony Clement tabled Bill C-32 entitled An Act to Amend the Copyright Act, which may also be referred to as the Copyright Modernization Act. Bill C-32 represents the Conservative government’s latest attempt to implement revisions to the Copyright Act. Potential changes to the Copyright Act have been the focus of intensive discussion and debate between stakeholders for a number of years. The Conservative government’s previous reform attempt, Bill C-61, was introduced in the summer of 2008, but it died on the order paper (before being passed into law) when a federal election was called in the fall of 2008. The previous Liberal government’s June 2005 attempt, Bill C-60, also died on the order paper when Parliament was dissolved in November 2005.

Growing pressure from the European Union and the United States, which view the Canadian Copyright Act as inadequate to protect copyrighted material, appears to have prompted the federal government to propose amendments to the Act once again.

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Responding to the latest public outcry, Facebook CEO Mark Zuckerberg recently announced a number of new policies and settings; however, the changes may not be enough to satisfy regulators and critics. The Office of the Privacy Commissioner of Canada (OPC) recently responded to Facebook’s new privacy settings, warning that Facebook has not gone far enough to satisfy its commitments to the OPC.

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