snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Monthly Archives: December 2011

AQT Survey Reports on Market Conditions and Strength of Quebec ICT Sector

Posted in Intellectual Property, M&A/Finance

A recent survey of Quebec-based Information and Communication Technology (ICT) businesses revealed some encouraging results and identified some obstacles to growth and investment. SOM, on behalf of the Quebec Technology Association (AQT), surveyed over 650 Quebec ICT businesses with between 4 to 500 employees and analyzed the data collected from 495 of these businesses. The survey was sponsored by Canada Economic Development and McCarthy Tétrault.

Here is a summary of some of the key results from the survey.

  1. Most Quebec ICT businesses are currently growing. Of the businesses surveyed, 67% indicated that their revenues had increased during the last fiscal
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Privacy Commissioner Releases New Online Behavioural Advertising Guidelines

Posted in E-Commerce, Privacy, Regulatory Compliance

The Privacy Commissioner of Canada recently released new guidelines to assist organizations involved in online behavioural advertising (OBA) ensure that their practices are transparent and comply with the federal private sector privacy legislation. The guidelines are attention-span friendly, weighing in at three pages, with few surprises and largely high-level takeaways.

The guidelines accept that OBA may be “considered a reasonable purpose under the Personal Information Protection and Electronic Documents Act (PIPEDA),” provided it is done within certain “parameters”, namely:

  • Information collected for OBA is likely personal information: as a default position, the Privacy Commissioner takes the view that information collected
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Obviousness: New Decision Holds that Court is to Look at Patent Disclosure to Determine the Inventive Concept

Posted in Intellectual Property, Patents

To determine whether an invention claimed in a patent is obvious, what parts of a patent can the court consider to ascertain the inventive concept of the claims? According to the Federal Court decision in Allergan Inc. v. Canada (Minister of Health), the disclosure of a patent – not just the claims themselves – can be used as part of this inquiry.

In Allergan, Sandoz argued that the patent claims define the invention and, therefore, the inventive concept of the patent “must be discerned solely from the language in the claims of the patent.” However, the Court held … Continue Reading

Negotiating Benchmarking Clauses – Ten Tips for Customers

Posted in Contracting/Outsourcing

Having previously examined the rationale behind benchmarking, the factors that can undermine its utility and the circumstances in which benchmarking can be used effectively, here are my top ten tips to keep in mind when negotiating a benchmarking clause:

  1. Benchmarking rights are not a substitute for good due diligence on deal terms, especially pricing. Customers should do their homework to get a reasonable level of comfort that the terms and conditions of their deal will remain sufficiently market competitive over the term. It is important to remember the best way to make sure a deal stays up-to-date is to have
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Benchmarking Rights in an IT or Outsourcing Contract – Are They of Any Value?

Posted in Contracting/Outsourcing

There are differing opinions on the value of negotiating benchmarking rights into an IT services or outsourcing contract.  This post will look at the rationale behind benchmarking, the factors that can undermine its utility and the circumstances in which benchmarking can be used effectively. The next post will provide ten tips on negotiating benchmarking clauses.

What is Benchmarking?

A benchmarking is a process through which the competitiveness of a contractual arrangement is assessed, usually by an independent third party, by comparing the arrangement to other comparable deals in the marketplace. The results of the assessment may lead to a binding … Continue Reading

Attaching Standard Legal Terms to RFPs – Top Eight Considerations

Posted in Contracting/Outsourcing

Economic considerations and efficiency gains are forcing companies to reconsider their procurement strategies. Many of our clients who use RFPs or similar procurement processes often ask us whether they should attach a form of agreement or standard terms and conditions when issuing an RFP. There is no set answer to this question, but here are eight things to consider when thinking about whether you should attach “Ts and Cs” to your RFP:

  1. What are you buying?  It is somewhat trite, but the specific services or products being procured, the scope of the project and its importance to your company will
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