In a ruling released yesterday in Felipa v. Canada, the Federal Court of Appeal held that deputy judges of the Federal Court over the age of 75 have no authority under the Federal Courts Act.
Tag Archives: Federal Court
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.
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.
FCA allows appeal on lack of sound prediction (Latanoprost)
In a decision released yesterday, the Federal Court of Appeal has allowed Apotex’s appeal and held that Pfizer’s 132 Patent relating to latanoprost “fails to meet the requirements for sound prediction.”
Continue reading FCA allows appeal on lack of sound prediction (Latanoprost)
FCA upholds patent infringement and validity in Phostech v. Valence
The Federal Court of Appeal upheld the trial decision of Justice Gauthier in the decision Phostech v. Valence 2011 FCA 237 (PDF) finding that the trial judge made no error in construing the claim to find the patent valid and infringed.
Continue reading FCA upholds patent infringement and validity in Phostech v. Valence
Amazon.com follow up
While we wait for the judgment from the Federal Court of Appeal in the Amazon.com proceeding on the patentability of business methods, I thought I would post a few remaining items from the case.
I had previously posted copies of the Appellant’s Factum and the Respondent’s Factum. Copies of the Intervener’s Factum and the Respondent’s Reply to the Intervener are now also available.
There are a few reports from the hearing including from Nora Sleeth at Osgoode Hall Law School and Chris Heer of Bennett Jones.
Federal Court of Appeal on s.73
In decision released yesterday, the Federal Court of Appeal considered the application of s.73(1)(a) ‘good faith’ under the Patent Act and held that “Its operation is extinguished once the patent issues.” (PDF of decision) Dimock Stratton represented two of the respondents in the case and has a summary available.
Bifurcation Orders
The Federal Court has posted a “model” bifurcation order (DOC) for use in intellectual property matters.
Interlocutory injunction denied in Esomeprazole-Apotex
In a decision published yesterday, Justice Crampton of the Federal Court denied Astrazeneca’s request for an interlocutory injunction against Apotex. The decision is Astrazeneca Canada Inc. v. Apotex Inc., 2011 FC 505 (Esomeprazole) in T-1668-10 and follows a PM(NOC) proceeding in which Apotex’s allegations of invalidity against at least some of the patents were found justified (T-371-08). The decision has already been appealed and the appeal dismissed by the Federal Court of Appeal (A-180-11).
Professor Norman Siebrasse of University of New Brunswick and author of the Sufficient Description blog, has an interesting discussion of the test for an interlocutory injunction in the context of this decision.
Patentable Subject Matter Update
Earlier today, the United States Supreme Court announced that it would be hearing the appeal in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Amazon.com hearing before the Federal Court of Appeal is scheduled for tomorrow in Toronto.