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

David Elder -

This week, the Federal Court of Canada made its first damage award ever under the 10 year old Personal Information Protection and Electronic Documents Act (PIPEDA), awarding damages to a businessman in connection with the provision of inaccurate credit information by a credit reporting agency -- despite a failure to prove actual losses arising from the breach.

While the quantum of the damages awarded in Nammo v. Transunion of Canada Inc., was a modest $5,000 plus costs, the case establishes several important principles respecting the interpretation of PIPEDA and the availability of damages for humiliation stemming from a violation of the Act.

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Geoffrey North

Health Canada has released its statistical report for 2009 in respect of the administration of the Patented Medicines (Notice of Compliance) Regulations (the PM(NOC) Regulations) and data protection provisions of the Food and Drug Regulations. These statistics provide interested parties and policy makers alike with information concerning the effects of Canada’s IP regime on therapeutic medicines.

The PM(NOC) Regulations are designed to balance the competing interests of effective patent enforcement over new and innovative medicinal drugs against the timely entry of lower priced generic competitors. The Food and Drug Regulations prescribe that innovative drugs are to receive an eight year guaranteed minimum period of market exclusivity (data protection provisions). Together, these measures ensure a minimum period of protection for medicinal drugs while maintaining a reasonable ceiling on the maximum protection available.

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David Elder

The Canadian government’s anti-spam bill, Bill C-28, moved quickly through Parliament this fall, receiving Royal Assent on December 15th, just before Parliament rose for its holiday season break.  Though not yet available at press time, the final version of the bill will be available soon at the Parliamentary Website. Industry Canada indicated, in an eMail message to interested parties, that it anticipates that the new law will come into force in six to eight months.

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In early September 2010, the Federal Court of Appeal concurred with an earlier decision of the Canadian Copyright Board "(Board)" holding that the download by a single user of a music file from an online music service is a communication of the musical work to the public by telecommunication.

In Bell Canada, et. al. v. SOCAN the Court of Appeal was asked to determine whether the transmission of a musical work to an individual by an on-line music service should be considered to be a communication of that work to the public by telecommunications within the meaning of paragraph 3(1)(f) of the Copyright Act. The question of whether the download was in and of itself a communication was not at issue, as it had been previously held by the Supreme Court of Canada in SOCAN v. Canadian Association of Internet Providers that a music file is communicated when it is recreated on the recipient computer. Such a communication was also held to qualify as a communication by telecommunication.

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On October 20, the Federal Court of Appeal put an end to the disparity in the jurisprudence surrounding whether a patentee could obtain a patent to a medicine subsequent to obtaining a patent to a process for producing the medicine by dismissing Bayer’s appeal in the case of Bayer Schering Pharma Aktiengesellschaft v. The Attorney General of Canada. The case stems from May 2008, when the Commissioner of Patents refused to grant Bayer a patent to a pharmaceutical compound per se because a previous patent had already been issued to it for the same compound when made by a particular process (product-by-process patent).  After Bayer’s appeal to the Federal Court was dismissed, it appealed to the Federal Court of Appeal.

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According to two recent Federal Court decisions, privacy – though protected by the law - is not worth that much money when it comes to actual damage awards.

While most privacy complaints are resolved through the Office of the Privacy Commissioner of Canada, some cases are litigated in court with plaintiffs hoping to receive monetary compensation for privacy violations. Two such cases are Randall v. Nubodys Fitness Centres, 2010 FC 681 (CanLII) and Stevens v. SNF Maritime Metal Inc. 2010 FC 1137 (CanLII).

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A recent decision of the Federal Court expounded on the harm that can occur if two patents issue for the same invention.  The Honourable Mr. Justice O'Reilly effectively quashed any suggestion in prior case law that patentees could use public dedications to overcome the effects of double patenting, which would otherwise allow them to extend their monopoly.

In Merck & Co. Inc. v. Canada (Health), Merck brought an application under the Patented Medicines (Notice of Compliance) Regulations (SOR/93-133) (the NOC Regulations) seeking an order prohibiting the Minister of Health (the Minister) from issuing a notice of compliance (NOC) to Apotex Inc. (Apotex) for the medicine dorzolamide, used in the treatment of glaucoma, until after the expiry of Canadian Patent No. 1,329,211 (the ‘211 Patent). 

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Geoffrey North

A recent Federal Court decision highlighted the differences in prohibition proceedings under the Patented Medicines (Notice of Compliance) Regulations (the NOC Regulations) and impeachment actions under the Patent Act.  It is yet another example of how every case is to be determined on the specific evidence adduced before the Court.

In Eli Lilly Canada Inc. v. Apotex Inc, the Court dismissed Eli Lilly’s application under the NOC Regulations for an order prohibiting the Minister of Health (the Minister) from issuing a notice of compliance (NOC) to Apotex in respect of the medicine atomoxetine until after the expiry of the ‘735 Patent.  However, the dismissal was based on mootness alone, as the Court would have allowed the application had it not invalidated the ‘735 Patent entirely in a related impeachment action brought by Novopharm.

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