Michael Geist

My weekly Law Bytes column (Toronto Star version, homepage version) examines new Canadian Supreme Court nominee Mr. Justice Marshall Rothstein, whose lengthy record on patent, copyright, and trademark matters suggests that he may very well challenge the status quo at Canada' s highest court. The column uncovers several speeches by Justice Rothstein that reveal a candid judge who is uncomfortable with incorporating policy into the legal decision making process, who is willing to examine intellectual property laws of other jurisdictions, and who recognizes the limits of intellectual property law.

Justice Rothstein, who appears before a House of Commons committee today, has emerged as a prominent jurist on intellectual property cases at the Federal Court of Appeal.  His best-known decision is the Harvard Mouse case, which addressed the question of whether higher life forms, in this case the "oncomouse", could be patented.  Justice Rothstein ruled that it could, concluding that there was nothing in the definition of "invention" under the Patent Act to preclude such patents.

Justice Rothstein has also presided over leading copyright and trademark cases.  He wrote a concurring opinion in Law Society of Upper Canada v. CCH Canadian, a copyright case that focused on the photocopying of legal decisions.  He sided with the majority in a high-profile trademark battle between Lego and Montreal-based Mega Blocks.

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