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    Supreme Court Voids Viagra Patent as Insufficient Disclosure Means It Fails the "Patent Bargain"

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    Thursday November 08, 2012
    The Supreme Court of Canada this morning shocked the pharmaceutical industry by voiding Pfizer's patent in Canada for Viagra. The unanimous decision provides a strong reaffirmation of the policy behind patent law, namely that patents represent a quid pro quo bargain of public disclosure of inventions in return for a time limited monopoly in the invention. The Supreme Court describes it in this way:

    The patent system is based on a "bargain", or quid pro quo: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. This is the basic policy rationale underlying the Act. The patent bargain encourages innovation and advances science and technology.

    Disclosure is therefore a crucial part of the patent bargain.


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    Supreme Court Securities Act Constitutionality Ruling Throws Digital Laws into Doubt

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    Thursday December 22, 2011
    The Supreme Court of Canada this morning ruled that the federal government's plan to create a single securities regulator is unconstitutional since it stretches the federal trade and commerce clause too far into provincial jurisdiction. The ruling is a wake-up call on the limits of federal powers, even where many may agree that the policy rationale for federal intervention is a good one. The court ruled that most of the securities regulatory activities deal with day-to-day contractual regulation within the provinces and that "these matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole."

    While the immediate implications are obviously focused on the securities industry, there are significant implications for several of Canada's digital-focused laws including PIPEDA (the private sector privacy law), the new anti-spam legislation, and the digital lock rules found in Bill C-11.  The privacy and anti-spam laws are particularly vulnerable since both rely on the same trade and commerce provision that the court just addressed. There have been questions about the constitutionality of PIPEDA since its inception (Quebec launched a challenge that is now dormant, State Farm recently revived the issue) and today's decision will certainly stoke the fires for a constitutional challenge, particularly given the Privacy Commissioner's call for stronger enforcement powers. The anti-spam legislation, which awaits final regulations before taking effect, faces similar questions since it too relies heavily on the trade and commerce clause.

    The constitutional questions of Bill C-11 do not arise from the trade and commerce clause, but do involve similar questions about encroachment into provincial jurisdiction over property and civil rights. As I wrote earlier this fall, the government's own analysis of the bill confirms that the digital lock rules envision potential violations of copyright even when there is no copyright infringement. By removing the link to actual copyright infringement (breach of the digital lock rules may occur without a copyright infringement and without regard for traditional copyright defences), the law ventures into property and civil rights. Several scholars have argued that the approach is fundamentally about contractual rights, not copyright, and thus falls within provincial jurisdiction. Today's Supreme Court of Canada decision serves as a reminder that there are limits on federal powers and that the C-11 digital lock approach may be more constitutionally vulnerable than its supporters are willing to admit.

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    Supreme Court Grants Leave in K-12 Copyright Case

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    Thursday May 05, 2011
    The Supreme Court of Canada has granted leave to appeal the Federal Court of Appeal decision involving copyright and K-12 schools, which specifically addressed fair dealing in the context of education.  I wrote about the Federal Court of Appeal decision here.

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    Supreme Court Will Lead Tech Law in 2011

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    Tuesday January 11, 2011
    Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election.  My weekly technology law column (Toronto Star version, homepage version) notes that while there is no shortage of potential new laws - bills on privacy, copyright, and lawful access are all before the House of Commons - an election call before the fall would likely mean that those bills would die on the order paper.

    With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place.  Canada‚Äôs highest court has lined up a tech-heavy docket that will have a major impact Canadian law.


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