Federal Court of Canada provides narrow interpretation of the scope of Patent Agent Privilege

law books

One does not need to be a legal scholar to know that confidential communications between lawyers and their clients for the purpose of seeking and giving legal advice are generally privileged.  The so-called “solicitor-client” privilege is a cornerstone of law and allows clients and their lawyers to freely discuss legal issues without unintended disclosures.  Thus, apart from certain exceptions, Canadian courts will not compel production of privileged communications such as emails, letters and reports exchanged between clients and their lawyers for the purpose of legal advice.

For years, this special treatment did not attach to communications between clients and their patent agents.  This was problematic because patent agents often provide equally strategic and sensitive advice and opinions in the specific area of patents.  As a result, it was common practice to channel such communications through lawyers to shroud these under solicitor-client privilege.

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Quick overview of the state of patents for psychedelics

psychedelics

Psychedelics are a class of psychoactive substances that produce changes in perception, mood and cognitive processes. Also so known as “hallucinogens”, reference to psychedelics is commonly meant to include substances such as Psilocybin (a.k.a. “magic mushroom”), MDMA (a.k.a. “extasy”) and LSD (Lysergic acid diethylamide).

Likely following the lead of the ongoing legalisation of cannabis in Canada, many U.S. states and other countries, the recent years have seen unprecedented investments and an increasing interest in research, production, and supply of psychedelics, particularly for potential medicinal uses.

The present article aims to provide a brief overview of the current situation from a patent perspective and to discuss about patenting strategies for these substances.

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Australia and South Africa find Artificial Intelligence “Inventor” compatible with Patent Law

woman in front of digital tech

Traditionally, an “inventor” in a patent application has been defined as a person who invented or discovered the subject matter of the invention. Until recently, it has not been necessary to consider whether a non-human entity could be considered an inventor.  With the development of artificial intelligence based technology (“A.I.”), we need to consider the issue. If we have reached a point where A.I. could independently invent or create protectable IP, could such an A.I. be listed as an inventor?[1]

To date, several patent offices considering this issue have found that A.I. cannot be considered an inventor.[2]  Two recent decisions may be showing a change in this trend.

In Stephen Thaler v Commissioner of Patents[3], the Federal Court of Australia is the latest to consider whether the definition of “inventor” excludes a non-human artificial intelligence. In a ground-breaking decision, the Australian Court found that a non-human “inventor” is not inconsistent with inventorship under Australian law. 

More recently, South Africa issued a patent designating an A.I. system as the inventor.  However, South Africa does not offer formal examination so the issue of whether A.I. systems are properly identified as inventors does not appear to have been considered.

It will be interesting to see what impact, if any, these decisions will have on Canadian patent law.

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Image Copyright in the Age of Social Media

Social media phone

In an age where online image sharing is more prevalent than ever thanks to the abundance of different social media platforms, the question of who has a right to use what photographs or creative visuals may appear increasingly complicated, but the truth is that similar copyright principles that apply to a physical photograph or artistic image also apply to pictures shared over social media. Continue reading for a discussion of social media platforms’ rights to the images posted by their users and for an explanation of Canadian copyright in images.

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Bill C-218 receives royal assent: the legalization of single-event sports betting in Canada

chips dice and cards

Canadian provinces will soon be tasked with the regulation of single-event sports betting. On June 29, 2021, Bill C-218, entitled An Act to amend the Criminal Code (sports betting) (“Bill C-218”), received royal assent. Once the amendments come into force, provincial governments and licensed persons will have the option of lawfully offering bets on races, fights, single sport events, and athletic contests.[1] The amendments have the potential to generate additional revenue for provinces and increase protections for consumers.

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