The Federal Court of Appeal recently affirmed a Federal Court decision concerning a costs award from the liability phase of a patent infringement action between the Dow Chemical Company and NOVA Chemicals Corporation. The awarded lump-sum payment of C$6.5 million appears to be the largest reported award that the Federal Court has ever granted in an action for patent infringement.
A recent Federal Court of Appeal decision is a helpful reminder that industrial design protection for the visual features of a useful article is broad in scope and can extend to functional features of the article, provided that they are not dictated solely by function. This can provide a valuable and cost-effective way of protecting the shape, configuration, pattern and ornament of a useful article.
Bill C-59 was recently introduced in Parliament. The bill will implement certain portions of the federal budget and proposes significant changes to aspects of Canada's IP system. They include proposed changes to the Patent Act and the Trademarks Act to provide clients with statutory privilege for confidential communications with their patent agents and trademark agents.
Two recent Supreme Court decisions have reiterated the importance of interpreting the Canadian Copyright Act in a manner that ensures a balance between a user's rights and those of the creator or copyright owner. The court emphasised the importance of considering the test for the fair dealing provisions from the perspective of the user rather than the provider of the copies.
The Supreme Court of Canada recently considered whether the photocopying of textbook excerpts by teachers to distribute to students as part of course materials constitutes 'fair dealing'. A majority of the court concluded that the Copyright Board had made several errors in its analysis of the 'fairness factors', and thus the board's conclusion that the copying was "unfair" was not reasonable.
Pursuant to the Canadian Patent Act, three procedures are available to a patentee for amending the claims of a patent post-grant: a reissue, an ex parte re-examination and a disclaimer. A recent Federal Court judgment has significant implications regarding the risks to Canadian patentees that utilize these post-grant procedures to amend a patent.
The Supreme Court of Canada has ruled on the interplay between the copyright of a freelance author in an individual work published with authorization in a newspaper and the separate and distinct copyright in the newspaper as a collective work or compilation.
A recent Ontario Court of Appeal ruling warns publishers to exercise care if electronic copies of a collective work or compilation are made where that work includes other copyrighted works. It is advisable to ensure that the appropriate licences are obtained from the rights holders in the underlying works.