The federal laws on patents, copyright and trade-marks provide
the principal protection for intellectual property in Canada. Canada
is a member of the WTO agreement on Trade-related aspects of
Intellectual Property rights (TrIPs) and has agreed to the minimum
standards of protection and reciprocal treatment provided in this treaty.
Canada is a member of the Paris Convention for the Protection of industrial Property
(stockholm act) and the Patent Cooperation Treaty
The Patent act
provides that any new, useful and unobvious invention that falls within the statutorily defined categories, namely, art, process, machine, manufacture or composition of matter (or any improvement of any of these)
is patentable. higher life forms per se
are not OF The PaRis
patentable, but engineered genetic material
material typically are patentable. algorithms
are not patentable, but computer
implement a tangible and useful solution
In a landmark decision rendered in October 2010, the Federal Court overturned a rejection by the Commissioner of Patents and the Canadian Patent appeal Board of a patent application of amazon.com for its “one-click” online product-ordering technology. The Commissioner of Patents had held that amazon’s application did not qualify as having patent-eligible subject matter under the Patent act.
In overturning this finding, the court articulated a new test that does not preclude computer-implemented innovations and business methods from being patented in Canada as long as they meet the general test of what constitutes an “invention” under section 2 of the Patent act.
In late 2011, the Federal Court of appeal allowed the appeal of the Federal Court decision. One point of difference with the reasoning in the decision at first instance was that the Court of appeal dismissed the view that a business method may become patentable subject matter merely because it has a practical
embodiment or a practical application. On the other hand, the Court of appeal agreed with the judge at first instance in his determination that patentable subject matter must either be something with a physical existence or something that manifests a discernible effect or change. The Court of appeal remanded the construction of the patent claims back to the Commissioner of Patents, and the application was issued by the Patent Office shortly thereafter. The amazon.com
decision is thought by many to herald a new era of increasing acceptance for patents directed to computer-implemented inventions and business methods in Canada.
Other patent decisions of note in Canada in the past year have included a unanimous decision of the supreme Court of Canada which held that Pfizer Canada’s patent describing and claiming sildenafil, the active ingredient for the prescription drug vIaGra®, failed to satisfy the disclosure requirements of the Patent act.
The Court came to this holding on the basis that the specification did not categorically indicate that sildenafil was the effective compound of interest, and that the notional skilled person, on reading the patent, would be left to the prospect of further testing to determine which of two stated compounds in the specification would actually work. another noteworthy decision included a judgment of the Federal Court that invalidated certain of the claims of a patent of eurocopter for a helicopter landing gear structure, on account that
the utility of the claimed structure was not
demonstrated nor soundly predicted at the
date of filing of the subject application.
The result is a surprising one for a patent
or biotechnology fields. The decision is
currently under appeal and a decision is
a patent grants its owner the exclusive right in Canada to make, sell or use the invention for a fixed term. In general, the first inventor to file for patent protection will be entitled to a patent. There is no requirement that the invention be made in Canada. The application in Canada must generally be filed before the invention is made available to the public anywhere in the world. a grace period of one year is permitted for
disclosures originating directly or indirectly from the inventor, but an application by another inventor with an earlier filing date will effectively prevent the grant of a patent. It is therefore important to file as early as possible in Canada or in a Paris Convention country, and not rely on the grace period. The making of an invention available to the public includes publication (e.g., by publication of an earlier patent application or by distribution of a product embodying the invention). Pending patent applications will be published by the Canadian Intellectual Property Office 18 months after the earliest filing date claimed by the applicant. The patent will last for a maximum of 20 years from the date of filing in Canada, provided all annual maintenance fees are paid in a timely manner.
Canada has and is in the process of implementing the WiPo Copyright Treaty
(WCT) and the WiPo Performances and Phonograms Treaty
(WPPT). Many of the substantive provisions in the WCT and WPPT, such as the establishment of a “making available” right and the
revision to the Copyright act
that came into
force in November 2012. The new legislation,
in addition to addressing these international
treaty obligations, provides a new secondary
liability remedy against those who “enable” digital infringements, as well as a series of broad new exceptions to copyright protection, including exceptions in respect of “reproduction for private purposes”, “time-shifting”, “technological processes”, “fair dealing for the purposes of education, parody or satire” and “user-generated content”. The new legislation also contains new safe harbours for Internet intermediaries, including for hosts and Internet location tool providers; however, providers considering reliance on the new safe harbour provisions should be aware they are subject to the new “enablement” remedy.
In mid-2012, the supreme Court of Canada released five new copyright decisions. The most important themes emerging from these decisions include the supreme Court’s acknowledgement of the concept
of technological neutrality (the idea that digital and non-digital uses should receive comparable treatment under copyright law) and the continued treatment of copyright exceptions as “user rights”. however, it should be noted that the decisions were made under the historical Copyright act,
and may not apply predictably to the new provisions passed in late 2012. In November 2012, the supreme Court issued another important copyright decision in which it prohibited the creation of copyright-like rights by any body other than Parliament, in this instance the Canadian radio-television and Telecommunications Commission, which has regulatory oversight over broadcasting and telecommunications policy in Canada.
Canada is a party to the Berne Convention
and the universal Copyright Convention.
Depending on the nature of the work, the owner of copyright in a work has the sole right to reproduce, perform, publish or communicate the work. The Copyright act
provides that copyright arises automatically in all original literary, artistic, dramatic or musical works. The Copyright act
provides that registration is permissive rather than mandatory. however, registration does raise certain presumptions in favour of the registered owner that are useful in the context of litigation. In general, copyright lasts for the life of the author plus 50 years. since 1993, computer programs are expressly protected, under statute, as literary works.
Canada is not a member of the madrid agreement
or the madrid Protocol.
The Trade-marks act
provides for the protection of interests in words, symbols, designs, slogans or a combination of these to identify the source of wares or services. rights in a trade-mark are created through use in Canada (or in the case of foreign owners, by use abroad and
eventual registration in their home country).
It is possible to reserve rights by filing based
on an intent to use a trade-mark in Canada.
registration is permissive and not mandatory.
registration does, however, give the registrant the exclusive right to use the mark throughout Canada and facilitates enforcement. Without a registration, an owner’s rights are limited to the geographic area where the mark has been used. If the trade-mark owner
intends to license the mark for use by others, even by a subsidiary company, proper control over its use by the licensee is essential for proper protection. While a trade-mark endures for as long as the owner uses it to identify his or her wares
or services, registrations can be attacked on
the basis of non-use or invalid registration.
The first term of a registration is for 15 years INTerNeT-BaseD
and is renewable for successive 15-year terms PraCTICe OF MeTa-
The Internet’s domain name system and the
present the intellectual property system
interesting challenges. The conflict between
the registered trade-mark system and a domain names registry is the result of domain name registrations following a “first come, first served” policy, without an initial, independent review of whether the name being registered is another person’s registered trade-mark. at the same time, a domain name in some respects is more powerful than a trade-mark, as there can only be one company name registered for each top-level domain.
To obtain a Canadian “.ca” registration, a would-be registrant must meet certain Canadian-presence requirements. These present certain challenges for foreign entities that do not wish to incorporate in Canada. While the ownership of a registered Canadian trade-mark suffices to meet the requirement, the owner may reserve only those domain names that consist of or include the exact word component of that registered trade-mark.
In Canada, some trade-mark owners have successfully used the doctrine of “passing off” in combating so-called “cybersquatters.” In other cases, they have argued trade-mark infringement under the Trade-marks act.
To gain control of a domain name, it might also be possible to argue “depreciation of goodwill” under section 22 of the Trade-marks act
as well as misappropriation of personality rights.
The Canadian Internet registration authority (CIra) Domain Name Dispute resolution Policy (CDrP) is an online domain name dispute resolution process for the “.ca” domain name community. One- or three-member arbitration panels consider written arguments and render decisions on an expedited basis. among other features, the CDrP permits a panel to award costs of up to $5,000 against a complainant found guilty of reverse domain name hijacking.
other Intellectual property
Patents, copyrights, trade-marks and domain names represent some of the most common types of intellectual property. however, in today’s economy, intellectual property protection takes many additional forms. The common law protects against the misappropriation of trade secrets, personality rights and passing off, among other things. It also protects privacy and personality rights to some degree. a broad range of particular rights and obligations also arise under more specific statutes such as the industrial Design act,
the integrated Circuit Topography act,
the Personal information Protection and electronic Documents act,
the Plant Breeders’ Rights act,
the Competition act,
the Public servants inventions act
and the status of the artist act.
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