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

A judge of the Supreme Court of New York State has recently held that information voluntarily placed on Facebook and MySpace pages are discoverable, and that doing so would not violate the plaintiff’s right to privacy.

The plaintiff, Romano, claimed that she sustained permanent injuries as a result of an accident and also that she could no longer participate in certain activities and her enjoyment of life was affected.  As part of its defense, the defendant brought a motion to obtain complete access to the plaintiff’s current and historical Facebook and MySpace pages and accounts on grounds that the plaintiff has uploaded certain information that would be inconsistent with her claims concerning the extent and nature of her injuries.

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An Ontario Superior Court Justice has allowed the use of Facebook as a valid method for the service of court documents.  In a paternity suit where the mother could not find the father except on Facebook, Justice Cheryl Robertson allowed the mother to serve the father in a message over Facebook.  Justice Robertson believes that in today’s connected world, electronic service is the next logical step for the delivery of documents which may otherwise be undeliverable.

Since the Rules of Civil Procedure allow for substituted service when regular service is impractical, Justice Robertson argues that electronic means of service provide a practical solution. E-service is even more useful in the context of family law cases where litigants may be trying to avoid being found in anticipation of child support claims. In a paper she presented earlier this month, Justice Robertson points out that e-service has several advantages over regular service including speed and cost efficiency. Furthermore the person who is serving the document will know immediately if they have sent the documents to the wrong email address or know if a user has been active in checking their Facebook page through their recent activity log. While the use of e-service is on the rise, the judiciary may be slow in adopting it, as many judges may be unfamiliar with different electronic tools. Despite this, Justice Robertson is optimistic that over time the benefits of e-service will win over even the most skeptical opponents.

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Geoffrey North

In a decision reminiscent of the recent In re Bilski decision in the U.S., the Federal Court of Canada has found that patents relating to “business methods” can constitute patentable subject matter in the highly anticipated decision of Amazon.com v. The Commissioner of Patents.  In his decision dated October 14, 2010, the Honourable Mr. Justice Michael Phelan discusses differing laws and disparate judicial decisions respecting the patentability of “business method” patents across the globe, and is a necessary read for those wishing to implement a cogent global IP strategy.

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In the recent case of 405341 Ontario Limited v. Midas Canada Inc., the Ontario Court of Appeal affirmed that the Arthur Wishart Act applies to franchisees outside Ontario where parties choose Ontario law to govern their franchise agreement. Stikeman Elliott partner Wesley Ng provides more comprehensive coverage of the case in a Slaw column published today.

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Novopharm Ltd. v. Eli Lilly and Company 2010 FC 915

Novopharm Limited (now known as Teva Canada Limited but hereafter referred to as Novopharm) sought a declaration under s. 60(1) of the Patent Act, R.S.C. 1985, c. P-4 that Eli Lilly and Company’s (Lilly’s) Canadian Patent No. 2,209,735 (the ‘735 Patent) was invalid and void. The ‘735 Patent claimed the use of the medicine atomoxetine for treating attention deficit hyperactivity disorder (ADHD) in three of its manifestations among all age groups (children, adolescents and adults). The ‘735 Patent did not claim the compound atomoxetine but only its use to treat ADHD.

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Amazon.com, Inc. v. The Attorney General of Canada, and The Commissioner of Patents   2010 FC 1011

Canada’s Federal Court has released its long awaited decision in the patentability of Amazon.com’s one-click order process.  This was an appeal from the decision of the Commissioner of Patents denying Amazon's patent for a "business method", having found that it was not patentable subject matter under s. 2 of the Patent Act.

The case concerned Amazon.com's simplified "one-step" ordering method and system which uses stored information and "cookies" to enable customers to order items over the internet simply by "clicking on them".   The Court found that the system claims clearly disclose a machine which is used to implement Amazon.com's one-click ordering system and a machine is patentable under s. 2 of the Patent Act.   The Court also found the method, when viewed as a whole, to be patentable as an "art" and a "process" because:

[The method is] not simply a scheme, plan or disembodied idea; it is a practical application of the one-click concept, put into action through the use of cookies, computers, the internet and the customer's own action.   Tangibility is not an issue.   The 'physical effect', transformation or change of character resides in the customer manipulating their computer and creating an order.   It matters not that the 'goods' ordered are not physically changed.

The Court concluded that there is no exclusion for "business methods" in Canada.   Business methods are to be assessed for patentability like any other method.

Edit: a more substantial analysis has been completed.  Please view it here

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On Thursday, September 30, Stikeman Elliott hosted a client seminar featuring Abhilash Bhachech from the Office of the Superintendent of Financial Institutions.  Richard C. Owens and Mihkel E. Voore joined Mr. Bhachech as speakers with Wesley Ng serving as moderator.

The seminar began by exploring risks faced by companies in an era of technology dependence.  Because of the multiple points of intersection between modern business and technology, these risks emanate from a number of sources.  Threats could be posed by the regulatory environment, such as non-compliance with IT control provisions of financial reporting regulations (such as Sarbanes-Oxley in the United States) or with data security legislation.  Threats can arise from service providers (for example, unmanageable expenses arising from a poorly drafted outsourcing contract) and competitors (for example, IP infringement claims).  Threats can also arise from catastrophic events such as 9/11, following which some companies were unable to promptly access their back-up data.  In addition, the corporation itself could be a source of technological risk if its IT infrastructure is not properly managed.  The rapid pace of technological advances and the inability of the development cycle to keep up means that technological change is also a major risk to IT systems.

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Juris Publishing recently released the second edition of "Intellectual Property Law of Canada", a treatise on Canadian IP law edited by Stikeman Elliott's Stuart McCormack (Managing Partner of the Ottawa office). The text, which provides analysis and commentary on major subjects in intellectual property law, was published in September.

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