News

Ontario Superior Court supports neutral citations and electronic decision databases

In a practice direction, the Ontario Superior Court announced that as of October 1st, parties should include neutral citations (2011 ONSC 123) on Superior Court decisions, in addition to other citations. They also announced that they will accept copies of decisions from electronic databases all though they caution that decisions are sometimes corrected after issuance and the date the decision was obtained electronically should be noted in the citation. The practice notices identifies QuickLaw and CanLII as “Approved electronic databases” dedicated to the publication of judicial decisions.

The Federal Court and Federal Court of Appeal had previously announced their support for the use of neutral citations for all decisions.

News

Voltage “Hurt Locker” affidavit

As mentioned last week, the Federal Court issued an order allowing Voltage Pictures to obtain information from ISPs about subscribers who had allegedly downloaded the “Hurt Locker” movie (Voltage Pictures LLC c. Mr. or Ms. DOE, 2011 CF 1024 – Translation). A copy of the supporting affidavit (PDF) providing the plaintiff’s facts linking the downloading of the movie to IP addresses is now available online (thanks @AnthonyHemond).

In BMG Canada v. Doe, 2005 FCA 193, one of the leading cases in this area of the law, the recording companies brought a motion for documents in the possession of the ISPs under Federal Courts Rules, Rule 233. The court ultimately denied the motion in that case and concluded that the supporting evidence connecting the pseudonyms of the P2P users with IP addresses was inadequate. At the time, the Federal Court of Appeal wrote:

[21] Much of the crucial evidence submitted by the appellants was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed.

From the Federal Court’s ruling in the Voltage proceeding, this does not appear to have been an issue.

News

Federal Court grants copyright Norwich order against P2P users

In Voltage Pictures LLC c. Mr. or Ms. DOE, 2011 CF 1024 and 2011 FC 1024 (Translation), Justice Shore of the Federal Court granted an order allowing Voltage Pictures LLC, the production company behind the movie “Hurt Locker”, to obtain the identities of alleged P2P downloaders of the movie from various internet service providers (ISPs).

In the unopposed motion, the Court considered the requirements under PIPEDA, the requirements under Rule 238 of the Federal Courts Rules, and the 2005 Federal Court of Appeal decision in BMG Canada v. John Doe, 2005 FCA 193.

A Norwich order is used to obtain information from a third party necessary to identify defendants. The Ontario Superior Court in Tetefsky v. General Motors Corp., 2010 ONSC 1675 has described the order as follows:

[34]           A Norwich Order takes its name from the Norwich Pharmacal & Others v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.). Norwich Pharmacal knew that a patent that it owned was being infringed, but it did not know the names of the infringers. It asked the Customs and Excise Commissioners in England, who did know, for the names. After the Commissioners refused to provide the information, exercising an equitable jurisdiction associated with the ancient equitable bill of discovery, the House of Lords held that the court had the discretion to order discovery from a non-party and the Law Lords ordered the Commissioners to provide the information.

In this case the plaintiff started the action (T-1311-11) on August 24, 2011 with a statement of claim and simultaneously filed the motion under Rule 238. It is not clear from the docket if the ISPs were served with the motion, had knowledge of the motion or had agreed not to oppose the motion – none appeared at the hearing on August 29, 2011.

Voltage Pictures LLC has been involved in similar litigation against P2P downloaders in the United States over the “Hurt Locker” movie, including pursuing 5000 alleged downloaders in the United States according to media reports.

Daily Alert

BCSC on copyright, website terms of use and scraping

The B.C. Supreme Court released a decision last week in Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 involving allegations that Zoocasa improperly scraped content from Century 21’s online real estate listings. In a lengthy decision, the court dismissed the claim for trespass to chattels, granted nominal damages for breach of the website’s terms of use and awarded statutory damages in favour of the individual plaintiffs for copyright infringement.

Continue reading BCSC on copyright, website terms of use and scraping →

News

More PAB decisions released

The Patent Appeal Board at the Canadian Intellectual Property Office has released four more decisions. This is in addition to the 6 decisions that were posted late last month and follows a long period where no decisions had been posted for some time.

The decisions released yesterday are:

  • 1313 (PDF) (2011-04-14) – Patent Application No. 2121906 – E.I. Du Pont de Nemours and Company – In a short decision the PAB considered novelty and the patentability of soybean products and concluded that amended claims submitted by the applicant were allowable.
  • 1314 (PDF) (2011-04-18) – Patent Application No. 2407304 – Genentech, Inc. – The PAB reconvened to further consider the Applicant’s comments after issuing its decision in #1307 in November 2010. The Applicant alleged that it had not been able to fully address two issues. The PAB upheld its earlier decision but allowed amendments to address the rejection. The claims were directed to antibodies defined in terms of the target polypeptides.
  • 1315 (PDF) (2011-07-11) – Patent Application No. 2161785 – Massachusetts Institute of Technology and Children’s Medical Center Corporation – The claims, primarily directed to bio-compatible, biodegradable cross-linkable hydrogel to deliver cells into a patient such that an organ equivalent is eventually created, had been rejected as being broader than the description and the PAB reversed the examiner allowing the claims.
  • 1316 (PDF) (2011-07-14) – Patent Application No. 2383007 – Novartis Vaccines and Diagnostics S.R.L. – After a final rejection, the applicant had voluntarily amended the claims to address most of the objections and at the time the PAB hearing was scheduled, further agreed to cancel the remaining problematic claims. The PAB allowed the amendments under Patent Rules, 31(c).

 

News

SCC denies leave on selection patent proceedings

Update: The Supreme Court has denied the leave applications.

On Thursday, the Supreme Court of Canada denied leave will be announcing whether it will grant leave in three related proceedings primarily relating to the validity of a selection patent. Apotex (SCC #34067), Genpharm (#34068) and Cobalt (#34066) are seeking leave to appeal the decision of the Federal Court of Appeal in 2010 FCA 320. That decision held that Lundbeck’s patent CA1,339,452 was a valid patent for the purposes of a PM(NOC) prohibition order. Continue reading SCC denies leave on selection patent proceedings →

Canadian Intellectual Property