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Counterclaim Against Non-Asserted Claims Is Permitted as of Right Under the...
The Federal Court has noted that the Patented Medicines (NOC) Regulations[1] “seek to balance the patent enforcement rights of innovative drug manufacturers with the timely market entry of lower-priced...
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The Intellectual Property Rights and Existential Threat of Large Language Models
The publisher Springer Nature is issuing books with such subtitles as A Machine-Generated Literature Overview, while ChatGPT is being credited as co-author on research papers published in Elsevier...
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Intellectual Property Litigation at the Federal Court
Canada’s Federal Court is the go-to forum for intellectual property litigation in Canada. While provincial superior courts have concurrent jurisdiction over infringement proceedings, for several...
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Does Fair Use Provide a Celebrity Right to Plagiarize?
Background By contrast with the fair dealing user’s right in Canada, the United States copyright law provides a fair use exemption. Since the reader might encounter US commentary of decisions...
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Large Language Models and the Death of the Author
In my last Slaw column, I dealt with the rapid responses to the “authorship” question from the leading journal Nature and the U.S. Copyright Office to the sudden arrival of large language models (LLM),...
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A Missed Opportunity
In Canada (Attorney General) v. Benjamin Moore & Co., 2023 FCA 168 the Federal Court of Appeal had to assess the effort by the Federal Court to clarify the rule around subject matter objections for...
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Joining the Call for Canadian Copyright Reform Now
Hugh Stephens, a Canadian policy and business consultant, has a new book out In Defense of Copyright. In advance of its release, he did a column on July 15th in the Globe and Mail, “Why Canada Needs...
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Consumer Transactions on Amazon Are Subject to Arbitration
How does a Court assess a class action claim against a high-tech giant where the evidence is that the plaintiff reaffirmed the conditions of use numerous times in making her transactions in the world...
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A Writer Helps Draw an Intellectual Property Line for AI
With OpenAI’s release of ChatGPT-3 on November 30th 2022, it very quickly became clear to people that the innocent-sounding Large Language Models (LLMs) had crossed a historic threshold when it came to...
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A Right to Repair
A private members bill directed to a ‘right of repair’ is working its way through parliament. Bill C-244, “An Act to amend the Copyright Act (diagnosis, maintenance and repair)” is currently at third...
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A Difficult Test for Inducing Patent Infringement
How far does a generic drug maker need to go to exclude liability for inducing patent infringement? In drug patent cases the product monograph is key in assessing whether inducement exists. In the case...
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An Open Letter on Open Access
Dear Tri-Agency, I was delighted to see your announcement last summer that the Tri-Agency, representing Canada’s major research funders (CHIR, NSERC, SSHRC), have decided to review your Open Access...
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Double Patenting Again
Some recent court decisions have focused more attention on double patenting in Canada. Double patenting occurs when someone obtains two patents for the same (“co-terminus”) or similar (“obvious-type”)...
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Let’s Plays: A Copyright Conundrum
Were you ever scolded as a child for playing too many video games? Did your parents tell you that your Game Boy was rotting your brain or that you would never make any money playing Donkey Kong? Or...
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Federal Court of Appeal Examines the Scope of the Implied License to Use a...
The Federal Court of Appeal had the opportunity to examine the implied license to use a patented article upon its unrestricted sale in Pharmascience Inc. v. Janssen Inc., 2024 FCA 10. The issue arose...
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Not a Good Year for Research Integrity
Last year a disheartening record was set for research integrity in scholarly publishing. In 2023, over 10,000 research articles were stamped “retracted” reducing them to ghost research. The previous...
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“Due Care” Required to Overcome Missed Patent Deadlines
A recent decision of the Federal Court endorsing the position of the Canadian Intellectual Property Office is a warning to patent practitioners on communication practices with their clients. In...
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R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses
In R. v. Spencer[1] the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an...
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AI Today: Grand Theft Auto or Public Benefactor?
“This is the largest theft in the United States, period.” Such is the judgment of author and scriptwriter Justine Bateman who has complained to the US Copyright Office that the AI industry has scraped...
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When Intellectual Property Proceedings Go Too Slowly
What happens when an intellectual property enforcement proceeding takes too long? Most IP cases in Canada take place in the Federal Court where the rules around dismissals for delay are different than...
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Fair Dealing User’s Right Is Available Despite a Technological Protection...
Much concern was expressed on whether a technological protection measure could be used despite the fair dealing user’s right to effectively lock up a work forever. Some parts if the answer to this...
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Academic Freedom and the Israel-Hamas War
As a faculty member of Simon Fraser University, I recently participated in a SFU Faculty Association vote on a motion “calling upon SFU to divest from Israeli commercial interests, suspend partnerships...
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Canadian Anti-Spam Law Update
The Canadian Radio-Television and Telecommunications Commission (CRTC) remains one of the bodies responsible for compliance with Canada’s Anti-Spam Legislation (CASL). On April 4, 2023, Canadian police...
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What Was Heard: Contradictions in Canadian Scholarly Publishing
In July of last year, Canada’s three research-funding agencies set out to improve public and academic access to the studies they sponsor. Open access to research and scholarship is proving to be the...
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Ambiguous Patent Claims
Patents have a reputation of being difficult to read and understand and a key part of most patent litigation proceedings is ‘construing’ or providing meaning to the claims of the patent. A recent...
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Ontario Is the Second Appeal Court to Find a Search of a Digital Device at...
In R v. Pike[1] the Ontario Court of Appeal considered the expansive search power of Customs and Border officers under s. 99(1)(a) of the Customs Act.[2] The Ontario Court of Appeal set the stage for...
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Generative AI: The Awards and the Infringement
The week of October 7th this year was quite something for Artificial Intelligence (AI). It was the object of two consecutive Nobel Prizes, awarded just days apart. The first, in Physics, went to John...
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Autopsy of a JPEG: What Happened to NFTs?
When was the last time you heard someone talk about NFTs? Was it when Paris Hilton and Jimmy Fallon showed off their Bored Apes on national television back in January of 2022? Or perhaps it was when...
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Federal Court Reaffirms Jurisdiction of the Patented Medicines Prices Review...
The Federal Court of Appeal took the occasion of an appeal of the order of the Patented Medicines Prices Review Board (the “Board”) that required a patentee to share reports on medicines that were no...
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Federal Court Examines “Due Care” Requirement
Section 73(3)(b) of the Patent Act permits the Commissioner of Patents to reinstate a patent that is deemed to be abandoned if he receives a proper application on time and if “the Commissioner...
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