Trends, analysis and insights in IP Law
(French version available at bottom of article)
The past year has brought forward several important decisions in Canada trademark law. From depreciation of goodwill claims, objections founded on bad faith and lack of distinctiveness, several cases have highlighted certain challenges that trademark owners may face in enforcing their rights.
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(French version available at bottom of article)
True to its continental European heritage, Canada has a strong regime for the protection of moral rights. This includes the inalienable right of creators to be associated with their work as its author and to protect its integrity, notwithstanding any assignment of economic rights. These rights have been recognized in Canada under the Copyright Act (the “Act”) since 1931 and have been repeatedly recognized in past decisions of the Supreme Court of Canada1.
As reported in an earlier ANGLE post, we discussed how 2021 saw a number of patent office developments with regard to whether a non-human entity could be considered an inventor under various patent regimes. Prior to 2021, several patent offices had considered this issue and found that A.I. could not be considered an inventor. In 2021, however, an Australian Court found that a non-human “inventor” is not inconsistent with inventorship under Australian law and South Africa issued a patent designating an A.I. system as the inventor.
It would appear at the end of 2021 that some patent offices were trending towards recognizing a non-human entity, like A.I. based technology, as an inventor. Could this trend continue?
Maybe not. With a decision just before Christmas of 2021 from European authorities, any such trend may have been stopped in its tracks.
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UPDATE: On April 14, 2022, the Minister of Health announced that the federal government will not proceed with amendments to the Patented Medicines Regulations introducing new pharmacoeconomic factors and requiring that price and revenue information be reported net of all adjustments. The federal government will proceed with amendments establishing a new basket of comparator countries, with a coming-into-force date of July 1, 2022. For more information, see our Life Sciences Bulletin on the Minister’s announcement.
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In December 2021, the Patented Medicine Prices Review Board (the “PMPRB”) and the Minister of Health issued two updates regarding the Regulations Amending the Patented Medicines Regulations (the “Amendments”) and the new PMPRB Guidelines (the “New Guidelines”). These notably include a further deferral of the coming-into-force date of the Amendments. The updates, along with the Federal Court of Appeal’s (“FCA”) July 2021 decision in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (“Alexion”), may have important implications for pharmaceutical patentees in Canada as they implement or revise their pricing strategy for 2022 and beyond.
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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