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Dimock Stratton's Intellectual Property Law Newsletter, IntellProp. L. Nws. 2013-03
Intellectual Property Law Newsletters
— Dimock Stratton's Intellectual Property Law Newsletter
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Contents
I.1 Copyright — Crown immunity — contextual analysis — Copyright Act binds Crown I.2 Trademarks — expungement — NEOWEB — confusion — first impression I.3 PM(NOC) — omeprazole — obviousness — obvious to try — significant effort I.4 Copyright — ownership — infringement — employment agreement — joint venture I.5 Patented medicines — Copaxone Syringe — excessive pricing — factors I.6 PM(NOC) — s. 8 damages — azithromycin — ex turpi causa — infringement — testing of bulk material I.7 PM(NOC) — drospirenone — claim construction — product by process — substitutes I.8 Passing off — interlocutory injunction I.9 Trademarks — s. 45 expungement — deviation from registered design mark — use — sale by non-licensee II.2 Applications for leave to appeal to the Supreme Court of Canada III.1 India — patents — patent on imatinib mesylate denied on ground of pharmaceutical "evergreening" III.2 United States — copyright — contributory infringement by inducement by providing a torrent service III.3 United Kingdom — copyright — orphaned works to be more accessible under "Instagram Act" I — Headlines
I.1 — Copyright — Crown immunity — contextual analysis — Copyright Act binds Crown
The governments of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Saskatchewan sought judicial review of the Copyright Board's dismissal of their objection that the Board had no jurisdiction to set a tariff in respect of their reprographic reproduction of copyrighted works in Access Copyright's repertoire. These applicants had argued that they were immune from Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
Dimock Stratton's Intellectual Property Law Newsletter, IntellProp. L. Nws. 2013-03
the Copyright Act and thus not subject to tariffs. While the Interpretation Act provides that no act is binding on the Crown except as specifically set out in that act, the Board found that on a contextual construction of the Copyright Act taking into account exceptions set out in the Act for the Crown, the Act was intended to bind the Crown. Moreover, the Board found that the applicants' conduct in implementing policies that abided by the Copyright Act constituted a waiver of any Crown immunity.
Held, application dismissed. The Copyright Act binds the Crown.
The standard of review was correctness. To rebut the presumption of the Interpretation Act that the Crown is not bound by the Copyright Act, there must be a clear parliamentary intention to bind the Crown or a logical inference of such an intention.
The Board undertook the proper contextual approach when searching for that intention, and did not improperly place too much weight on the Crown exceptions set out in that Act.
Section 12 of the Act, which sets out the basis of Crown copyright, is an important part of the contextual analysis; the part of the Act dealing with infringement sets out several exceptions that quite explicitly relate or apply to the federal and provincial Crown.
The language of s. 12 "[w]ithout prejudice to any right or privilege of the Crown" was intended to refer to the Crown's rights and privileges of the same general nature as copyright that might not be captured by that section. Those rights and privileges, however, could also be excluded by s. 89, which provides that no person is entitled to copyright except under and in accordance with the Copyright Act or any other act of Parliament. The only logical and plausible conclusion as to the intent of Parliament is that the Crown is bound by the Copyright Act.
(F.C.A.), Gauthier, Sharlow, Mainville, JJ.A.
I.2 — Trademarks — expungement — NEOWEB — confusion — first impression
The appellant ("Presto"), owner of the registered GEOWEB trademark, sought to expunge the respondent's NEOWEB trademark registration on the basis of confusion with GEOWEB. Presto had commenced usage of GEOWEB in association with its cellular confinement systems in 1993, and registered it in 2001. In 1996, Presto granted a trademark licence for GEOWEB to the respondent P.R.S., although it appeared that P.R.S. was either not licensed in Canada or failed to distribute its products in Canada. The licence came to an end in 2006, at which point P.R.S. began to compete with Presto with a similar cellular confinement system using the trademark NEOWEB. P.R.S. obtained its trademark registration for NEOWEB in 2010. Presto then brought an application for expungement of the GEOWEB registration, which was dismissed (Reynolds Consumer Products Held, appeal allowed. The subject registration was struck.
The question of confusion is determined with regard to all surrounding circumstances including the factors enumerated in s. 6 of the Trade-marks Act. While the applications judge had found that both companies were engaged in the same wares, business, and trade, it appeared that he had determined that three of the s. 6 factors — the length of time the marks had been in use, the nature of the wares, and the nature of the trade — bore no weight. This was a palpable and overriding error since an analysis of the similar wares, business and trade of the two parties would have changed the result.
The FCA had previously affirmed that while consumers in the market for expensive goods may be less likely to be subject to trademark confusion, the test for confusion is still one of first impression. However, the applications judge permitted the importance and cost of the wares to change the likelihood of confusion test from one of first impression, to one of consumers being "unlikely to make choices based on first impressions". This was not consistent with the proper test for confusion.
Regardless of the possibilities that a consumer may not make a choice based on first impression, and may spend time researching the source of expensive goods or services, such choice and research occur only after the consumer encounters a trademark in the marketplace. Research may dispel any initial trademark confusion, but that does not mean that consumers of expensive goods Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
Dimock Stratton's Intellectual Property Law Newsletter, IntellProp. L. Nws. 2013-03
should lose the benefit of trademark protection due to their own caution. Consumers may nevertheless be led astray before the There was no basis to interfere with the lower court's findings that neither mark was inherently distinctive or that there was little evidence of use of either mark in Canada. However, the resemblance of the two marks should be viewed in conjunction with the nature of the wares and trade, which were the same. When the marks are compared, they sound similar, and the use of "neo" as a prefix could suggest that NEOWEB was a newer version of GEOWEB. Thus, NEOWEB could be likely to cause confusion with consumers with an imperfect recollection of the GEOWEB mark. The substantially identical wares and identical markets for the wares elevated the likelihood of confusion.
Turning to other considerations, P.R.S. or its distributors had marketed NEOWEB as formerly being GEOWEB. However, confusion is based on the trademark and not the additional wording included in advertising material, so this did not assist in determining whether the two marks were confusing. Evidence consisting of an email from an unidentified customer indicating confusion was of no assistance because there was no indication that person was in Canada. It was noted that the treatment of the marks in other jurisdictions favoured GEOWEB. The fact that NEOWEB was successfully registered over a citation of GEOWEB favoured P.R.S., but not so much that the two marks could not be found to be confusing taking the surrounding Reynolds Consumer Products Inc. v. P.R.S. Mediterranean (F.C.A.), Webb, Sharlow, Dawson JJ.A.
I.3 — PM(NOC) — omeprazole — obviousness — obvious to try — significant effort
Astrazeneca sought an order prohibiting the Minister of Health from issuing a Notice of Compliance to Ranbaxy in respect of its tableted dosage form of omeprazole. Astrazeneca's patent, filed in 1995, was directed to a multiple unit tableted dosage form of omeprazole, S-omeprazole, or alkaline salts thereof with an enteric coating. Ranbaxy had alleged that the claims at Held, application allowed with costs.
The parties were apparently in general agreement concerning the construction of the claims, which was not presented in the reasons for judgment except to indicate that the patent did not claim an enteric coating with a specific plasticizer or a specific quality of plasticizer, but only that required an "effective amount". Ranbaxy argued that the state of the art and common general knowledge included knowledge that multiple unit tablets of enteric coated pellets of omeprazole were possible; that they could be formed into a tablet; and that the amount of plasticizer recommended in the prior art was the same as used in the examples of the patent. While few multiple unit tablet formulations had been brought to market, Ranbaxy argued this was because it was not desirable for most drugs, and that the making of the claimed invention could have been accomplished directly and without difficulty using routine formulation and optimization techniques.
The main dispute between the parties with regard to obviousness was the fourth stage of the Sanofi obviousness analysis. The court found that experimentation was required in determining the appropriate composition of enteric coating required in this case. The appropriate type, content and composition of a plasticizer had to be determined, as well as the coating agent, quantity of coating agent, size of the sub-unit, external additives, rate and magnitude of pressure applied during tableting all needed to be examined to determine the most suitable composition. Accordingly the "obvious to try" test was deemed appropriate.
In the circumstances, the court found that the prior art taught away from the existence of the solution of an enteric coating suitable for dispersed omeprazole delivery, or else taught that such a solution was complex and technically difficult to produce.
The enteric coating was therefore not self-evident. Citing a 2011 article, the court found that the process for developing the delivery mechanism in question was highly complex, that it was rare to find a coating that suitably allowed the pressing of tablets in conformity with pharmacopoeial requirements. It therefore would have taken a significant effort and not mere routine experimentation to obtain the desired result. Despite motivation to find the solution addressed by the patent being found in the Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
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prior art, it was not an easy solution and would likely have dissuaded the person skilled in the art. Therefore, the allegation that the patent was invalid for obviousness was not justified.
Astrazeneca Canada Inc. v. Ranbaxy Pharmaceuticals Canada I.4 — Copyright — ownership — infringement — employment agreement — joint venture
The plaintiff corporation, POPS, and its sole shareholder, officer and director, Posada, brought an action for copyright infringement and related relief against the defendant corporation, IDP, and its shareholders, directors and officers Chapuis and Bazoge. At issue was the plaintiffs' asserted ownership of copyright in a business simulation software product called Ceres, and its updated versions referred to as Epsilon, Comex and Omega (collectively, the "software"), and the defendants' right to use them. Ceres was a significant modification of an earlier punchcard program developed by Andrew Szendrovits at McMaster University. The defendants counterclaimed for certain declarations and for the plaintiffs' copyright registrations to be struck, and for punitive and exemplary damages on the basis of the plaintiffs' treatment of them and their refusal to provide proof of Held, the plaintiffs' claim for a declaration of copyright ownership in Ceres is granted; all other claims dismissed. The defendants' counterclaim was dismissed. POS was a copyright owner, but IDP had at least an implied irrevocable licence for specific uses. The plaintiffs were ordered to provide the most recent versions of the software, including source code, to IDP.
Posada was one of the authors of Ceres. The POPS was the assignee of all residual interest Szendrovits had in the software by virtue of assignments executed by his estate and McMaster. POPS was therefore at least one of the rightful copyright owners The defendants asserted that Posada was hired by IDP to develop Comex and Epsilon, and to complete the development of Omega, a Windows version of Ceres, which the parties had begun in 1998. The plaintiffs denied that software development was intended to be one of Posada's responsibilities as an employee. The court favoured the defendants' version of events, and found that Posada was hired by IDP in early 2007 to develop adaptations of Ceres for IDP, including the completion of Omega.
Turning to the question of IDP's rights, the court found that it had always been understood between the parties that the defendants had, and would continue to have, the right to use the software, and that the defendants had given a significant amount of consideration over many years for that right. The individual defendants' rights had commenced in the early 1990s by virtue of a verbal agreement. A 1998 agreement confirmed IDP's right to use the software without further consideration, and an unsigned 2000 agreement, which the court found to be a binding verbal agreement, also provided that IDP would have the right to use each new version of the software. In view of the history of contributions and consideration by IDP, the court found that IDP had at least an implied, non-exclusive licence to use Ceres and its various adaptations developed for or in collaboration with IDP. At the time of grant of this licence, POPS did not own the copyright in the source code developed by Szendrovits; thus the licence was granted in POPS's capacity as an exclusive distributor of the software pursuant to an earlier agreement with Szendrovitz.
The licence was not revocable by the plaintiffs. IDP had provided substantial consideration in exchange for its licence to use the software, either pursuant to a written or verbal agreement, and as evidenced by the parties' conduct over the years. This consideration greatly exceeded the amount that Posada charged for licences to use the software until 1996. The defendants' questioning of the source of the plaintiffs' copyright claims while negotiating Posada's exit from IDP in 2008 did not constitute In view of the foregoing, the defendants did not infringe any copyright in the software held by the plaintiffs. While the defendants did not assert any ownership rights in the software developed by or on behalf of IPD, they had rebutted the presumption of POPS's ownership of the Comex and Epsilon versions. The plaintiffs' copyright registration for these versions was therefore ordered struck. The plaintiffs were entitled to a declaration of ownership of copyright in Ceres and that copyright registration was maintained. The court confirmed that IDP had a licence to use the software for all purposes related to its pedagogical activities. No punitive or exemplary damages were awarded as the plaintiffs' conduct was not sufficiently egregious.
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Planification-Organisation-Publications Systèmes (POPS) Ltée v. 9054-8181 Quebéc I.5 — Patented medicines — Copaxone Syringe — excessive pricing — factors
Teva asked the Federal Court to set aside a decision of the Patented Medicines Prices Review Board, in which Teva was ordered to pay the Crown $2.8M for having sold its Copaxone Syringe product in Canada at an excessive price. This was the second challenge by Teva to a Board decision in respect of this product; previously, an initial decision of the Board was quashed and sent back for redetermination by a differently constituted panel (Teva Neuroscience G.P.-S.E.N.C. v. Canada (Attorney The decision under review here was the result of that redetermination.
Held, the decision is set aside with costs and again returned for redetermination by a differently constituted panel.
In formulating its second decision, the Board ignored the pricing history of an earlier medicine format, Copaxone Vial, on the basis that the Board regulates medicines at the DIN level, and Copaxone had a different DIN for its syringe and vial formats and was accordingly not the same "medicine". This finding impacted the start date for considering Copazone Syringe's pricing history. The court held that the Board was entitled to deference in respect of the interpretation of "medicine", and there was nothing unreasonable with the Board's interpretation restricting "medicine" to DIN.
However, although the Board had laid out in its decision the factors to be considered in connection with excessive pricing, as set out in s. 85(1) of the Patent Act, the Board paid "no more than lip service" to the factors favouring a finding that the medicine was not excessively priced, and treated the Consumer Price Index as a conclusive factor, as the Board had erroneously The discounted factors included the fact that Copaxone Syringe was the lowest-priced medicine in its therapeutic class form 2002 to 2010. While the Board acknowledged this was an important consideration, it was apparently discounted because the closest comparator, Copazone Vial, was taken off the market in 2004. Also, while Copaxone Syringe was priced lower in Canada than in other countries from 2004 to 2010, the Board diminished the significance of this fact by stating that the price of the comparator drugs might have been influenced by exogenous factors. In both instances, the decision failed to provide concrete explanations or examples as to why these factors should be discounted.
The Board's decision thus lacked intelligibility and was unreasonable on this basis alone. However, a more fundamental legal error was the Board's interpretation of s. 85(1) of the Act generally as setting "limits" on pricing, rather than only providing protection from excessive prices. This interpretation likely resulted in the Board erroneously giving decisive weight to the CPI.
This was exactly the same error it had fallen into in its earlier decision.
Teva Canada Innovation v. Canada (Attorney I.6 — PM(NOC) — s. 8 damages — azithromycin — ex turpi causa — infringement — testing of bulk material
Pfizer had unsuccessfully sought a prohibition order against Apotex in respect of Apotex's generic version of azithromycin.
Apotex accordingly sought damages under s. 8 of the Patented Medicines (Notice of Compliance) Regulations for its losses for the period it was excluded from the market as a result of Pfizer's prohibition application, which was dismissed in 2003. Pfizer contended that Apotex was disentitled to damages under the doctrine of ex turpi causa because it would have entered the market with material that infringed the patent that was the subject of the prohibition application. Apotex sought to make submissions on invalidity, although the original Notice of Allegation giving rise to the prohibition proceeding alleged only non-infringement.
Held, Apotex's claim is allowed with costs, with the quantum of compensation to be determined in a subsequent proceeding.
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The court was bound by its earlier claim construction in view of stare decisis and judicial comity. No reason was shown to the court why it should depart from that construction. The Regulations provided a comprehensive scheme, and s. 8 damage proceedings must have regard to the issues put into play by the prohibition application under s. 6. The Notice of Allegation circumscribed the issues that could be considered in this action, and new allegations of non-infringement or invalidity are not This did not prevent the issue of infringement from being raised in this proceeding, now that that Apotex's product was actually on the market and could be tested. Pfizer was entitled to introduce evidence showing that Apotex may have actually infringed the patent at issue. However, the doctrine of ex turpi causa was relevant only to the court's exercise of discretion under s. 8(5) and not to Apotex's entitlement to bring an action under s. 8(1).
The principal patent claim in issue, claim 1, related solely to the compound crystalline azithromycin dihydrate ("AD"). There was no direct evidence that Apotex had used any bulk material, manufactured any tablets, or marketed any tablets containing AD. Pfizer alleged infringement by Apotex based on inferences drawn from tests of bulk material not intended to be used in the manufacture of tablets, and of tablets made from non-infringing material.
Pfizer had conducted three internal tests of Apotex's tablets in 2006, 2008, and 2009. The 2006 test showed no detectable amount of AD and there was no evidence that the tablets contained AD. Apotex objected to the 2008 and 2009 tests, which were conducted by Pfizer's in-house scientists, on the basis that this evidence constituted opinion evidence by non-experts. The court found that the evidence was merely the results of the tests, and no opinion evidence was provided in interpreting the results. The 2008 and 2009 tests generated results consistent with 30 or 33% AD content, but Apotex's expert opined that this was insufficient evidence to demonstrate that the tablets contained AD.
Pfizer's expert tested thirteen lots of Apotex's raw material purporting to be another azithromycin compound (AIM) in 2012, and concluded that nine lots consisted mainly of AD, while the others contained a mix of AD and AIM. He also tested three lots of Apotex tablets in 2011 and 2012 and found that they contained a "detectable" amount of AD with AIM. Apotex's tests of bulk material destined for use in manufacturing showed that there was no AD. There was no evidence of a conversion of bulk material AIM to AD during the tableting process. Apotex's expert noted that Pfizer's expert had tested raw material that had been stored for several years in less than ideal conditions that might have permitted water to be introduced to the AIM, causing a conversion to AD. Indeed, some bulk material tested by Apotex in 2007 and 2008 and found to contain substantially pure AIM was then tested in 2012 by Pfizer's expert and found to contain AD. Furthermore, some of the bulk material Pfizer's expert tested and found to contain substantially pure AD was used to manufacture tablets that he found only contained the "detectable" amount of AD. Apotex's expert theorized that Pfizer's expert's tests may have detected a previously unidentified The foregoing evidence was accordingly insufficient to prove infringement. Apotex had met the conditions for relief under s.
8, and Pfizer had not demonstrated that Apotex was disentitled to relief.
I.7 — PM(NOC) — drospirenone — claim construction — product by process — substitutes
Bayer sought an order prohibiting the Minister of Health from issuing a Notice of Compliance to Cobalt in respect of drospirenone tablets until the expiry of Canadian Patent No 2,261,137, which claims a process for producing drospirenone.
Cobalt had served a Notice of Allegation asserting non-infringement and invalidity on the basis of obviousness.
Held, application dismissed with costs.
The only claim at issue was claim 13, which recited a "product prepared according to the process of Claim 12". Claim 12 and its antecedent claims were process claims reciting intermediate compounds. Bayer argued that claim 13 was a pure product Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
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claim, and should be read as if the words "prepared according to the process of Claim 12" were not present. Alternatively, Bayer argued that the process of claim 13 did not require the presence of a ruthenium salt at the oxidation stage of the process, and that any appropriate metal salt could be substituted and still fall within the scope of the claim.
These constructions were rejected by the court. Hoffman-LaRoche & Co. v. Commissioner of Patents, [1955] SCR 414, did not require product-by-process claims to be construed as pure product claims, and did not establish such a rule of claim construction.
Hoffman-LaRoche merely provided that a patent cannot be obtained for a known product even if a new process has been discovered for making it. Bayer's expert evidence that the claim recited the product alone was not accepted.
The patent described a three-step process for making drospirenone, and described a "key reaction" of oxidation in the absence of chromium trioxide, which achieved the stated ecological objective of the patent of avoiding the use of chromium. The only suitable alternative metal salts mentioned in the patent were ruthenium salts. There was no suggestion that other metal salts might work. A general statement referred to "catalytic amounts of a metal", but in the context of the patent as a whole could not expand the breadth of the invention, which was set out unambiguously in the claims. Bayer's expert opined that a skilled reader would have realized that other metal salts would work, but did not mention any potential alternatives to ruthenium.
Cobalt had alleged that it would not use a process that yielded the intermediate compounds, and would not use a ruthenium salt as an oxidizing agent. The allegation of non-infringement was justified.
Bayer Inc. v. Cobalt Pharmaceuticals Co. I.8 — Passing off — interlocutory injunction
The appellant Wildman operated a medical tourism business, originally focused on services for bariatric surgeries for weight loss, but then extended it in 2010 to include services for other types of surgeries. In connection with these other services, she began using the name Global Healthcare Connection and registered the domain name globalhealthcareconnection.com. The respondent Kulyk worked briefly with Wildman in 2010, then left to set up her own medical tourism business under the name Global Healthcare Connections (with an "s"). The parties disagreed as to who originated the name and the business concept; ultimately, after their working relationship ended, both parties applied for trademarks for their respective business names, with Kulyk filing first. Wildman took steps to block Kulyk's advertising in the media. While her trademark application was pending Kulyk initiated proceedings against Wildman for passing off, and sought an injunction, which was granted. Wildman appealed.
Held, the appeal is allowed with costs and the injunction is set aside.
The Chambers judge's analysis was in error. There was no serious issue to be tried. The first required element of the tort of passing off is the existence of goodwill. No evidence was put forward to establish any reputation or goodwill associated with Global Healthcare Connections, or any market presence. Kulyk's affidavit evidence was that she had been "wholly unable" to launch her business or build any sort of presence for it. The strength of her case was therefore fatally weak. As for irreparable harm, there is a distinction to be drawn between the harm caused to Kulyk's business by Wildman's use of the business name Global Healthcare Connection and the harm caused to Kulyk's business due to Wildman's attempts to thwart Kulyk's advertising campaign. It was not clear that Wildman's presence in the market would have caused any loss to Kulyk. Wildman had a more established business and faced more risk of irreparable harm if the injunction was granted, so the balance of convenience 1.9 — Trademarks — s. 45 expungement — deviation from registered design mark — use — sale by non-licensee
The Registrar of Trade-marks issued a s.45 notice under the Trade-marks Act at the request of Easton to Bauer's predecessor Nike Bauer Hockey Corp. ("Nike Bauer") in respect of the SKATE'S EYESTAY DESIGN mark, registered for use in association with ice skates. The registered owner of the mark was changed to Bauer by the time the notice was issued.
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The current owner of the mark, Bauer, tendered affidavit evidence of a sale of three skates from Bauer Hockey Corp. in 2007 to an Ontario business. The evidence included photographs of the skates that were sold. The design mark as registered comprises a rectangular box below and parallel to the eyelets of a skate boot, the rectangular box being contained within the eyestay on the exterior side of the boot in the center, and the bottom edge of the eyestay forming a contour around the rectangular box. The photographs showed that in use, the word "BAUER" had been added in a box positioned below and adjacent to the eyestay.
The box was more parallelogrammatic than rectangular.
The addition of "BAUER" constituted a dominant element of the trademark as used. The mark therefore ceased to be simply a design mark, and instead was clearly composed of two elements: the eyestay design and the word BAUER. The Board was not convinced that the public would likely perceive BAUER as a separate trademark from the mark at issue. Furthermore, the changes between the registered mark and the mark as used were too substantial to be considered minor deviations. The dominant features had not been preserved. The box in the mark in use was a parallelogram rather than a rectangle as in the registration, and was no longer contained within the eyestay of the skate.
The evidence showed that three pairs of skates were sold during the relevant three years preceding the s.45 notice. Because the word element "Bauer" was added to the trade-mark, the design mark was no longer the dominant element based on the first impression of the public test. Moreover, there were substantial differences to the design mark that rendered it no longer recognizable. Specifically, the box in use was no longer in the shape of a rectangle, but rather a parallelogram, was no longer contained within the eyestay of the skate, and the bottom edge of the eyestay did not form a contour around the box.
In view of the foregoing, the Board held that the mark should be expunged. However, the Board went on to observe that while the sale was in the normal course of trade, it had not enured to the benefit of the registered owner at the time of sale. Nike International Ltd. was the registered owner of the mark at the time of the sale in evidence. There had been a licensing agreement between this company and Bauer Nike Hockey Inc., but this agreement had terminated before the date of the sale, and the party alleged to have made the sale was Nike Bauer. There was no evidence that Nike International Ltd. had exercised the requisite Easton Sports Canada Inc. v. Bauer Hockey II. — Other Cases
II.1 — Court Decisions
Practice — pleadings — motion to strike — legitimate defence to be proven later Michael Kors LLC v. Beyond the Rack Enterprises (F.C.A.), Evans, Stratas, Near JJ.A.
Trademarks — opposition — new evidence — kits containing listed wares Monster Cable Products Inc. v. Monster Daddy (F.C.A.), Trademarks — opposition — new evidence — origin of online sales International Clothiers Inc. v. Dorna Sports, S.L. Trademarks — opposition — unreasonableness — dissection of mark into components — distinctiveness Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
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Practice — patented medicines — return of funds paid to Consolidated Revenue Fund Teva Canada Innovation v. Canada (Attorney Costs — lansaprazole — substantial indemnity endorsements — air of reality — forum shopping Apotex Inc. v. Abbott Laboratories Ltd. (Ont. S.C.J.), Quigley J.
II.2 — Applications for leave to appeal to the Supreme Court of Canada
Patents — validity — utility — promise of the patent — TRIPS and NAFTA Eli Lilly of Canada Inc. v. Novopharm Limited, SCC File No. 35067; Rothstein, Cromwell, Moldaver JJ., application for leave to appeal from 2012 FCA 232 dismissed with costs.
PM(NOC) — brimonidine — judicial comity as between PM(NOC) proceedings Apotex Inc. v. Allergan Inc., SCC File No. 35184; Fish, Rothstein, Moldaver JJ., application for leave to appeal from 2012 Practice — time period for filing application for judicial review Apotex Inc. v. Minister of Health, SCC File No. 35209; Fish, Rothstein, Moldaver JJ. application for leave to appeal from 2012 Copyright — summary judgment — appeal — unresolved ambiguity in contract — genuine issue for trial C-Map USA Inc. v. Nautical Data International, Inc., SCC File No. 35345; Fish, Rothstein, Moldaver JJ., application for leave to appeal from 2012 FCA 63 dismissed with costs.
III — News
III.1 — India — patents — patent on imatinib mesylate denied on ground of pharmaceutical "evergreening"
The Supreme Court of India in Novartis AG v. Union of India denied Novartis a patent on the beta crystalline form of imatinib mesylate based on amendments made to the Indian Patent Act that came into force after the application filing date. Section 3(d) of the Act, as amended, prohibited patent "evergreening" by preventing new forms of known substances from being patented, unless the new form had increased efficacy. The court characterized this as a "second tier of qualifying standards for chemical substances/pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds".
In this case, Novartis had earlier patented the alpha crystalline form of imatinib mesylate. Although data showing increased bioavailability of the drug was produced, this was not evidence of increased therapeutic efficacy. The court also made a note of foreign prosecution strategy indicating that Novartis considered imatinib mesylate to be encompassed by the earlier patent.
However, the court also stated it would be a "grave mistake" to read this judgment for a general statement banning patent protection for all incremental inventions of chemical and pharmaceutical substances.
III.2 — United States — copyright — contributory infringement by inducement by providing a torrent service
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In Columbia Pictures Industries v. Fung, the Court of Appeals for the Ninth Circuit affirmed in part, and vacated in port, the district court's judgment in favour of the film studios in this copyright infringement lawsuit against Fung, who ran a torrent site that enabled users to locate sources for downloading and streaming unauthorized copies of videos. Fung had attempted to claim protection under the safe harbour provisions of the Digital Millennium Copyright Act, and never disputed that his site's users included those who wished to infringe copyright.
Applying the Supreme Court's decision in Grokster III, the court found Fung liable for contributory infringement based on inducement because he had provided a service for copying; copyright material was uploaded and downloaded; he had actively encouraged uploading torrent files via a featured list of top box office movies and forum posts requesting torrents for specific copyrighted files; and there existed causation in his use of the peer-to-peer file sharing protocol. However, the court cautioned against a "lax causation requirement" to enlarge the scope of copyright, and stated that the intent of the defendant was paramount.
In this case, Fung took no steps to keep users from posting copyrighted material and did not employ any filtering mechanisms.
The court did reject the studios' position there could never be a DMCA safe harbour defense to contributory copyright liability.
III.3 — United Kingdom — copyright — orphaned works to be more accessible under "Instagram Act"
Enterprise and Regulatory Reform Act came into force earlier this year. Among other provisions, the Act extended the term of copyright for commercialized artistic works from 25 to 70 years following the death of the author, and introduced a licensing regime for orphaned works. The latter change permits the Secretary of State to implement licensing of orphaned works where the owner has not been found by a diligent search. The Act has been dubbed the "Instagram Act" since it evokes the extended terms of service the popular photo-sharing service Instagram attempted to implement last year.
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PRESSEMITTEILUNG Kampf gegen die „Klimagrippe“: Neue Fenster wirken wie Aspirin Aktuelle Untersuchungen des Instituts für Pflanzenökologie der Universität Gießen belegen: Die Klimaerwärmung nimmt weiter Fahrt auf. Innerhalb der vergangenen 100 Jahre stieg danach die Temperatur auf der Erde um durch- schnittlich 0,7 Grad an – ein Prozess, der laut Analyse früher T

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