snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Monthly Archives: June 2017

‘Promise Doctrine’ Abolished by the Supreme Court of Canada

Posted in Intellectual Property, Litigation, Patents

On June 30, 2017, the Supreme Court of Canada, released a landmark patent decision (2017 SCC 36) abolishing Canada’s so-called ‘Promise Doctrine’ by finding it “unsound”, “not good law” and “incongruent with the both the words and scheme of the Patent Act.”Continue Reading

European Banking Authority Responds to European Commission Public Consultation on Fintech: Potential Takeaways for Canada

Posted in Big Data, Cybersecurity, Financial, Fintech

In March 2017, the European Commission issued a public consultation document on Fintech.  The goal of the European Commission (EC) document is to further the objective of a digital single market within Europe.  This will be done by supporting the development of digital infrastructure,  improving access to goods and services, and ensuring rules foster technological development.

The European Banking Authority (EBA) published its response to the public consultation in June 2017.  The EBA response is significant because it sheds light on how European banks are approaching the areas of artificial intelligence, roboadvisors, crowdfunding, and big data.  Institutions in other countries, … Continue Reading

Worldwide de-indexing order against Google upheld by Supreme Court of Canada

Posted in Privacy, Social Media, Technology License Agreement

The Supreme Court of Canada released a landmark decision today ruling that Canadian common law courts have the jurisdiction to make global de-indexing orders against search engines like Google. In so, ordering, the Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 underlined the breadth of courts’ jurisdiction to make orders against search engines to stem illegal activities on the Internet including the sale of products manufactured using trade secrets misappropriated from innovative companies.… Continue Reading

Few “likes” for Facebook Forum Selection Clause: Supreme Court Finds “Strong Cause” to Not Enforce Forum Selection Clause

Posted in Class Actions, Litigation, Privacy, Social Media

Electronic terms of service govern billions of relationships worldwide, whether a user is joining a social media service, shopping online or accessing a blog. In each case, a binding contract is formed, the terms of which are usually set out in the website’s “terms of service” . But when a contract is made over the internet and there is later a dispute, whose law governs? What is the “forum” for the resolution of the dispute? What if the contract expressly designates a specific jurisdiction as the appropriate “forum”? In Douez v Facebook, Inc. (“Douez”), the Supreme Court of … Continue Reading

Funding your Start-Up: Stages and Types of Financing

Posted in Startups

Stages of Financing

There are a number of issues start-ups need to consider to be able to effectively raise capital. Focusing your efforts on developing your products or services and establishing strong and efficient leadership are essential in preparing your start-up for the increased scrutiny of prospective investors. In addition, entrepreneurs often overlook or fail to appreciate how important it is to structure initial rounds of financing with later rounds (and more sophisticated investors) in mind.… Continue Reading

Federal Court Strikes Claim Where Allegations of Patent Infringement Were Speculative

Posted in Intellectual Property, Litigation, Patents

On June 12, 2017, Prothonotary Aylen of the Federal Court issued her decision in Mostar Directional Technologies Inc. v Drill-Tek Corporation et al., 2017 FC 575. Prothonotary Aylen struck the Plaintiff’s claim, holding that the pleading was speculative and failed to provide sufficient material facts for the allegation of patent infringement.

In this case, the Plaintiff alleged that the Defendants infringed Canadian Patent Nos. 2,666,695, 2,544,457, 2,584,671, and 2,634,236 which relate generally to down hole drilling technologies. The Plaintiff’s claim identified the Defendants’ model names and listed the patent claims that were alleged to be infringed. After demanding … Continue Reading

“Not There Yet”: Bank of Canada Experiments with Blockchain Wholesale Payment System

Posted in Fintech

The Bank of Canada has issued a report on Project Jasper, its recently completed experiment testing the viability of distributed ledger technology (DLT) as the basis for a wholesale payment system. The experiment was a combined effort by the Bank of Canada and Payments Canada, along with Bank of Montreal, Canadian Imperial Bank of Commerce, HSBC, National Bank of Canada, Royal Bank of Canada, Scotiabank and TD Canada Trust. The experiment revealed that such technology is not more beneficial, at least for now, than the current centralized system of wholesale payments. However, the successful proof-of-concept highlighted best practices for wide-scale … Continue Reading

The Power of an Inference: Federal Court Restores $125 Million S. 8 Damages Award

Posted in Intellectual Property, Litigation, Patents

In Teva v. Pfizer Canada, 2017 FC 526, the Federal Court reaffirmed and reissued a judgment awarding Teva a section 8 damages award in excess of $125 million relating to the drug EFFEXOR XR® (venlafaxine). This decision offers insight into the legal limits on what inferences can be drawn about a generic’s ability to source sufficient drug supply in the but-for damages world.

The key issue at this redetermination[1] was whether Teva would have had and could have had access to sufficient quantities of venlafaxine at the relevant time to support its notional sales in … Continue Reading

Forming your Start-Up: Options for Business Entities in Canada

Posted in Startups

There are a variety of business organizations that can be used to operate your tech start-up in Canada. Although many businesses are operated through a corporation, it is important to understand other forms of business organizations. As there are significant tax, legal, financial and practical implications, selecting the right business organization for optimizing your business’s chance for success. The following are three of the most commonly utilized business organizational structures for a start-up business in Canada.… Continue Reading

Internal Technology Transfer Gone Wrong: Composite Technologies Inc. v. Shawcor Ltd., 2017 ABCA 160

Posted in Intellectual Property, Litigation

Intellectual property is transferrable. And you should be careful with how you transfer your IP among your corporate family, especially if it constitutes the principal value in your business – and in your life’s work!

One IP owner in Alberta had the misfortune of making a transfer to a subsidiary which he eventually allowed to be dissolved. When it came time to assert his ownership rights in the technology in a court, his suit was summarily dismissed as meritless.

Recently, the Alberta Court of Appeal ruled that this outcome was correct.… Continue Reading

CASL Private Right of Action delayed and Government to review CASL

Posted in Anti-Spam

CASL in its present form was a big mistake. The private right of action (PRA) which was scheduled to come into effect July 1, 2017 would have compounded the adverse effects of this flawed, overly-broad, indefensible, and likely unconstitutional law. See,  CASL’s private right of action.

The Government strongly signaled today that it is prepared to fix or at least mitigate some of the excessive elements of the CASL regime. This is something that every sector of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology … Continue Reading

3rd Edition of E-Discovery in Canada is now available

Posted in E-Discovery

E-Discovery_in_Canada_Cover_JAN2017Susan Wortzman, partner and Director of E-Discovery, and a team of experienced authors the third edition of E-Discovery in Canada. The book covers everything lawyers, in-house counsel and law clerks need to know about conducting e-Discovery, from preservation to proportionality to costs.

Learn from the professionals in Canada and find out how to leverage their know-how for better outcomes for your clients’ in this revised and updated edition. The third edition can be purchased here.

This article was originally posted on the Canadian Class Actions Monitor blog on June 2, 2017… Continue Reading