Choosing the perfect Halloween costume is a struggle for most trick-or-treaters; however, it can be particularly challenging for intellectual property lawyers. In Canada, unlike in some other countries, copyright exists in costumes which are representations of a copyrighted real or fictitious being, event or place.[1] For people who don’t want to buy a licensed costume that only leaves a few options.
Would-be James Bonds and Sherlock Holmes are in luck though. In Canada, written works are protected under copyright for a period of 50 years after the death of the author, which puts both Ian Fleming’s and Sir Arthur Conan Doyle’s stories in the public domain. The movies and TV series on which most of us would base a costume are still protected however, meaning that unique elements of those productions not found in the original books may still be protected. So would-be Le Chiffres from Casino Royale should have two good eyes and Blofelds shouldn’t have white cats (both are Hollywood additions to the original characters).
Close up of engineering drawing with electric motor
The long-awaited date has arrived. The amendments to Canada’s Patent Act and Rules, in order to implement Canada’s obligations under the Patent
Law Treaty (PLT), come into effect today.
The PLT is intended to harmonize and streamline formal procedures for
national and regional patent applications and patents in order to make them
more user friendly. Briefly, among other
changes, the amendments will introduce: (i) shorter deadlines for certain actions;
(ii) concepts of “third party rights”, “due care” and omissions being
“unintentional”; (iii) notices for missed deadlines; (iv) simplified
requirements in order to obtain a filing date; and (v) restoration of
priority. For a detailed overview of some
of the most significant changes, please refer to our bulletin on The New Patent Rules.
#SpookyIP U.S. Patent No. 3,965,574 to Harry Edwin Graves entitled “Apparatus for forming a jack-o-lantern”
Ever wished you had help with carving your Halloween pumpkin? If so, Harry Edwin Graves invented something just for you! Graves (the perfect name for the inventor of a Halloween themed invention) developed a device for carving a “jack-o-lantern” made of two curved plates engaging opposite sides of the pumpkin and retained in place by cords which are laced through the adjacent edge portions of the plates, the front plate having cutters for the eyes, nose and mouth. Enjoy carving your pumpkin and Happy Halloween!
In view of legislative changes and a recent Federal Court decision, patent applicants in Canada should be more circumspect as to what material makes its way into the Canadian prosecution file.
Traditionally, statements made during prosecution of Canadian patent applications or corresponding foreign patent applications (the “file wrapper”) were not admissible for construing terms in the claims of Canadian patents (so-called “file wrapper estoppel”). The Supreme Court of Canada even went so far as to refer to file wrapper estoppel as a “pandora’s box”. In the immortal words of Bob Dylan, however, times they are a changing. Recent legislative changes to the Canadian Patent Act, and more recently the decision of the Federal Court of Canada in Canmar Foods Ltd. v. TA Foods Ltd. appears to have changed that.
In view of the the legislative changes and the Canmar decision, patent applicants in Canada should be more circumspect as to what material makes its way into the Canadian prosecution file. As with many things in life, sometimes the less said the better!
In Canmar, the parties were competitors in the manufacture and supply of flax seed products, particularly roasted flax seed products. The plaintiff/patentee, Canmar Foods Ltd. (“Canmar”), owned a Canadian patent directed to methods for roasting oil seeds and the products produced by these methods. Canmar became aware of the defendant’s roasted flax seed products and, when talks broke down, Canmar commenced infringement proceedings.
In a motion for summary judgment. the defendant, TA Foods Ltd. (“TA Foods”), argued that its activities fell outside the scope of the claims of the Canadian patent, when properly construed. TA Foods took the position that in addition to applying a purposive construction to the claims based on a reading of the claims and the specification as a whole, the Court must also take into account representations made during prosecution (e.g. the file wrapper) of the Canadian patent. TA Foods, relying on both the Canadian and U.S. prosecution histories, argued that limitations added to overcome prior art cited in the U.S. case, which were incorporated into the Canadian patent, argued against infringement.
