Michelle Mao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Moderna and Pfizer battle’s over the inventive process of their respective mRNA COVID-19 vaccines revisit the negative associations of profit, monopolies, and optics in patent litigation. On August 26, 2022, Moderna released a that they will pursue a patent infringement lawsuit against Pfizer/BioNTech for their use of Moderna’s registered mRNA patents in creating the Pfizer COVID-19 mRNA vaccine. Moderna claimed that they had registered foundational mRNA patents between 2010 and 2016. , however, is that while Moderna is pursuing an infringement claim, they clarified that they will not prevent future sale of Pfizer vaccines, will not seek damages from sales of Pfizer’s vaccines in certain circumstances, will not seek a cut of Pfizer’s sales from the US government or from the 92 low and middle-income countries that had trouble accessing COVID-19 vaccines. While the specific remedy sought by Moderna is not defined in the press statement, Moderna wants a chunk of Pfizer’s profits, such as through .��

The strategic choice of Moderna’s press statement to detail remedies they will not pursue without revealing the precise  remedies they will pursue has led critics to call Moderna out for using “optics” and the quasi-sacrosanctity of intellectual property to further profits and strengthen their position in the mRNA pharmaceutical business. The balance that patent law seeks to achieve is well known, with , of the United States Constitution defining the purpose "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Moderna sought to protect themselves from the feeling of “unfairness” that arises when another appropriates your labour (in this case, Moderna’s labour of researching mRNA-based vaccines). Appealing to deeply engrained values of ownership, investment of resources and labour, and protecting themselves against misappropriation of their invested resources Moderna can protect its brand image while seeking billions of dollars from Pfizer in royalties or other types of remedies by, for example, appealing to deeply engrained values of ownership, investment of resrources and labour, and protecting themselves against misappropriation of their invested resources.��

The values at issue in this lawsuit speak to the current flaws of patent laws around the world, and the lawsuit’s impacts will be especially prominent as it relates to the COVID-19 vaccine that has saved almost in just one year. Currently, the Moderna versus Pfizer patent litigation is only being restricted to high-income countries solely on Moderna’s not to seek money from sales in low-income countries. However, reliance on this promise may be flimsy as Moderna has already its promise to not enforce patents through litigation during the pandemic to enforcement in high-income countries (as seen now). This exposes some concerns about our patent laws. For example, this lawsuit may have a chilling effect on future mRNA vaccine development. Another concern is how low- and middle-income countries (LMICs) may suffer from future patent lawsuits where promises not to seek sales from LMICs are not made and in the context of . Balancing the need to encourage rapid responses to global emergencies that require new technologies and access to these technologies all while discouraging monopolies will need to be scrutinized as we head out of the COVID-19 pandemic.��

So what solutions are available to prevent slowdowns in innovation and concerns for access in LMICs? What solution could be to make amendments to a country’s patent act, such as Canada’s which included such amendments. However, the impacts to the patentee could be significant, especially in terms of profits in a national or global emergency. While the amended Patent Act ensures payment of remuneration which the Commissioner of Patents deems adequate in of the Patent Act, this provision may not be feasible in countries with weaker economic power. A statutory defense to patent enforcement could be another solution, as seen in the American approach in This section allows patent “infringement” if the manufacturers are manufacturing goods for the use of the government in difficult times. Interestingly, we are already seeing this defense being used by Moderna themselves claims made against them. While these are two approaches available, the countries implementing these adjustments to patent protections are high-income countries with economic power to guarantee patentees are adequately recompensated, leaving the issue for LMIC concerns unaddressed. Additionally, these solutions also may not adequately address the chilling effect on innovation as the statutory defense is limited and the consequences of patent litigation are expensive.

Currently, no court decisions have been rendered regarding Moderna’s patent infringement claim against Pfizer. However, given the novelty and scale of the COVID-19 pandemic, there is no doubt that whatever decision is made, it will become a new precedent for future patent infringement claims of this scale.

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Gregory Hong is an IPilogue Writer and a 1L JD candidate at Osgoode Hall Law School,

Many of you are likely familiar with 3D printing. The process is as follows:

1. Add a digital model of a 3D model to a slicer;
2. The slicer “slices” the model and generates toolpaths layer by layer;
3. Upload the toolpaths to the 3D printer; and
4. Start the machine and wait!

Within hours, you will have a physical rendition of the object you modelled. During the early days of the pandemic, supply issues forced society to adopt any available means to source medical supplies. 3D-printing was able to fill some of the supply gaps faced in medicine, in an important but limited capacity.  It began with simpler things like  face shield holders, but over time, the 3D-printing community expanded its applications to things like , , and even a whole .

A mounting concern, however, was that the ability for anyone to download a physical 3D object may pose problems for IP rights. While the pandemic made it , it was important to consider possible avenues to ensure that IP does not hinder emergency response.

I will summarize here two published views on existing solutions to this IP problem: in a May 2022 article in The Journal of World Intellectual Property, explored exceptions that potentially allow IP to be freely used in emergencies: the right to repair exception, the private and noncommercial use exception, and the experimental use exception, while in a in International Review of Intellectual Property and Competition Law (IIC), Ballardini et al. examined two existing ways to tackle the problem: compulsory licensing and voluntary licensing.

Compulsory licensing is the straightforward authorization of licensing by force outlined in the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights . It is regarded, as it should be, as a last resort — administrative burdens make this route largely unviable as a fast way to enable and deploy an emergency response. Voluntary licensing, then, should be  the best existing means of promoting patented ideas in an emergency. Ballardini et al. looks specifically at IP pools and IP pledges as successful means in the response to the pandemic. Two very important examples of IP pools include the and the , which includes 3D-printing repositories. An IP pledge is effectively a patent holder announcing a limited-time public license of their patent. A prominent example of this is the , where many large technology companies have pledged “to make our intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease.” While IP pledges are powerful tools, it is still limited by patent holder goodwill. This is a problem because pledges are conditional and limited in scope, leading to confusion and uncertainty.

The right to repair exception is the right of an owner of a patented article to make repairs to preserve its useful life. Abbas argues that “A more robust and explicit right to repair exemption needs to be incorporated in patent law in response to the COVID-19 health emergency… This clear exemption is important so that consumers of medical devices and 3D maker communities can confidently engage in humanitarian efforts to repair critical life-saving medical equipment without risking patent infringement.”

The private and noncommercial use exception varies and is generally intended to prevent a patentee’s rights from restricting non-commercial activities that don’t conflict with the legitimate interests of the rights holder. Abbas also asked WTO Member-States to “adopt a reasonably broad noncommercial use exception to make it practically significant,” so as to allow medical device users to repair their devices without undue concern for IP problems.

The experimental use exception exists to support the advance of science and technology. Unfortunately, in Madey v. Duke, the Court  limited this exception’s scope significantly. Furthermore, as a common-law rule, experimental use is not defined by international agreement. Abbas calls for WTO members to clarify the experimental use defense and extend coverage to repairs, arguing that “facilitating increased experimental and repair activity by creating a safe harbor for experimentation with medical devices will better prepare countries to deal with a future pandemic.”

The pandemic has shown possible benefits to relaxing patent enforcement in emergency situations. It is thus imperative to explore how the IP system can avoid standing in the way of saving lives. The ideas outlined by Ballardini et al. and Abbas are a start – hopefully more ideas will be expressed and adopted going forward.

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Nancy Chen is an IPilogue Writer and a second-year JD/MBA Candidate at the University of Toronto.

In 2020, COVID-19’s emergence prompted scientists across the world to race against time to develop a vaccine, with the pharmaceutical giants Moderna, Pfizer and BioNTech (“Pfizer/BioNTech”) leading the way. Two years later, as the world adapts to the new normal and vaccine supply is no longer a preeminent issue, against Pfizer/BioNTech for unlawfully infringing upon Moderna’s patented mRNA technology in the making of their COVID vaccine. The was filed on August 26, 2022 in the United States District Court for the District of Massachusetts as well as the Regional Court of Düsseldorf in Germany.

Moderna’s position

According to before the District of Massachusetts, Moderna was founded in 2010 “on the promise of developing mRNA technology to create a new generation of transformative medicines.” The company has since been singularly focused on developing all aspects of mRNA medicine, cumulating in the process.

because of their extensive experience researching mRNA technology and using their patented mRNA platform, they were “uniquely positioned” to respond to the COVID-19 pandemic. As a result, Moderna’s mRNA vaccine, Spikevax, successfully reached clinical trials within just two months after the publication of the genetic sequence of the virus. Other were predicting that vaccine development could take years.

Infringement Allegation

In a , Moderna stated that they believed Pfizer/BioNTech unlawfully copied two key features of Moderna’s patented technologies in the development of their mRNA vaccine, Comirnaty. Specifically, Comirnaty contains the exact same chemical modification as Spikevax and it was developed using Moderna’s patented approach “to encode for the full-length spike protein in a lipid nanoparticle formulation for a coronavirus.”

Moderna also that Pfizer/BioNTech did not have the same level of experience as Moderna in developing mRNA vaccines, and despite testing four different vaccine candidates that did not use Moderna’s patented technology, they ultimately knowingly copied Moderna’s platform.

Pfizer/BioNTech addressed the allegations in a , stating that these lawsuits were unexpected given that Comirnaty was based on BioNTech’s own proprietary mRNA technology. They intended to “vigorously defend against all allegations of patent infringement.”

In recognition of the need for ensuring vaccine access, that it will not seek to remove Comirnaty from the market or prevent future sales of this vaccine. The company will also not seek compensatory damages from sales occurring before March 8, 2022, the date the company considers to be the end of the pandemic. Sales to the U.S. government or to a list of 92 low and middle-income countries in the Gavi COVAX Advance Market Commitment will also be excluded from damages.

It is, however, seeking monetary of up to three times the amount of compensatory damages found in relation to all other instances of infringement including reasonable royalties and/or lost profits, together with interest, costs, expenses, disbursements.

Looking forward

Patent lawsuits typically take years to resolve and this particular action is further complicated by . Pfizer/BioNTech has a solid defense by arguing reasonable reliance on Moderna’s to not enforce patents while the pandemic continues. Although Moderna perhaps made this promise in the hopes of an end date to the pandemic, this date will likely be contested given the ongoing nature of COVID-19.

The outcome of this legal dispute will have implications for the future uses of mRNA technology, which boasts the potential for future vaccines against a myriad of diseases such as influenza and HIV. If Moderna succeeds, there may be a chilling effect in biotech development which may be detrimental in the event of another pandemic. It would be interesting to see how courts construe public promises and their validity against patent rights, or if broken promises may affect a company’s goodwill in the eyes of the public.

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on  on August 24, 2022.

On August 11, 2022, the Office of the Privacy Commissioner of Canada (OPC) published a  on its survey of Canadian businesses regarding privacy related-issues (the Survey). This is the first survey of businesses published by the OPC since the beginning of the COVID-19 global pandemic – allowing for comparisons to be made with the pre-pandemic landscape.

The OPC commissions a survey every two years with the last survey conducted in 2019. The Survey findings are used by the OPC to provide privacy guidance to the public and improve outreach efforts with businesses. The Survey was conducted over telephone between January 12 – February 18, 2022 and involved representatives from 751 companies across Canada.

The Survey highlights several key findings on how Canadian businesses currently view privacy compliance. For example, the Survey found that businesses are well aware of their responsibilities under privacy laws with 86% of survey respondents indicating that their company is at least moderately aware of their privacy-related responsibilities, and 74% stating that their company has taken steps to ensure compliance with Canada’s privacy laws. The remaining key findings compared the privacy practices of companies in 2022 with their pre-pandemic counterparts:

1. Privacy Policy: Although the Survey found that 59% of companies have a privacy policy in place, this is less than in 2019 when 65% of surveyed companies reported having such a policy.
2. Privacy Practices: A large portion of surveyed businesses have implemented key privacy practices, such as designating a privacy officer (57%), developing internal privacy policies (51%), and having procedures in place for responding to customer requests for access to their personal information (51%). However, more businesses reported having implemented these measures before the pandemic with 62% having privacy officers, 55% having internal polices, and 60% having procedures for customer access requests in 2019.
3. Data Breaches: The Survey found that 28% of businesses are concerned with potential data breaches, which is a drop in response from 37% in 2019.

In interpreting the results, it is noted that the context of the business landscape during the data collection process may have affected the findings. The Survey was conducted at the height of the fifth wave of the pandemic after almost two years of pandemic-related restrictions. Businesses’ preoccupation with pandemic-related issues may have meant that “privacy responsibilities might not be top-of-mind” for those surveyed, who may have had a limited recall of their businesses’ privacy practices or not prioritized privacy as high amidst sweeping pandemic-related operational changes. This may have explained the reported decline in compliance between the years.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

As discussed in , Human Rights Watch (HRW) released a in late May outlining the privacy risks school children face across the globe. After a short summary, the report immediately explores ways we can address the risks, through a comprehensive list of recommendations to governments, ministries and departments of education, education technology companies, advertising technology companies and other third-party companies that may receive data from EdTech Products.

Recommendations to the government, education technology companies, AdTech companies and other third-party companies receiving sensitive data all included urgent remedial action to address the children who have been exposed to the risk of misuse and exploitation – identify, remove, and prevent the further spread of children’s data. Governments were also specifically suggested to bear the responsibility of demanding AdTech companies delete all children’s data received from EdTech during the pandemic. Further recommendations also included law reform to adopt, update, strengthen, and hold accountable child data protection laws “to deliver a modern child data protection framework that protects the best interests of the child in complex online environments.”

Alarmingly, the report found that out of the 49 countries examined, 14 countries lacked any form of data protection whatsoever, while others merely referred to children or were outdated and did not address more modern technology. The do include a specific section on consent and children and the importance of adult supervision for data collection for children below the age of 13. However, Canada still falls behind in implementing modern privacy legislation that addresses child consent. For example, under the , businesses cannot sell personal information of children who are less than 13 years of age, unless the child’s parent or guardian affirmatively authorizes the sale. Moreover, sets the age of consent at 16, requiring parental consent from those 15 years old or younger. Section 15 in Canada’s Bill C-11 mandates that “an organization must obtain an individual’s valid consent for the collection, use or disclosure of the individual’s personal information,” but does not specifically address a minimum age for consent.

Additionally, the report provided recommendations for ministries and departments of education. These recommendations included monitoring endorsed educational services and the companies providing those services, as well as creating written contracts regarding children's data protection between institutions and EdTech providers — not with the child. Moreover, EdTech companies are advised to write their privacy policies in “clear, child-friendly, and age-appropriate language” and provide separate legal terms for guardians and educators.

With all this said, we perhaps should not be too eager to place all the blame on governments and companies. In its final segment, “Failure to Protect”, the report highlighted testimonies from parents and educators. This showed how students, parents and educators alike were all operating in blind faith during the pandemic. The exceptional situation of the pandemic made everyone too willing to accept and comply with quickly-changing environments – children trusted their parents, parents trusted the teachers, and teachers trusted their schools and their governments.

The report's recommendations highlight a collective responsibility in ensuring the safety of our children online. We are all responsible to remedy past wrongs and prevent further risks to our children by addressing modern technology’s most glaring privacy issues.

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Ryan Erdman is an IP Innovation Clinic Fellow and a 2L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

In October of 2020, India and South Africa submitted a proposal to the WTO for a waiver of provisions of the Trade-Related Aspects of the Intellectual Property Rights (“TRIPS”) Agreement in a response to global inequities in access to COVID-19 interventions. Namely, they intended to ensure that essential vaccines, medicines, and equipment would be made available “promptly, in sufficient quantities, and at affordable prices” on a global scale by eliminating both established and anticipated barriers created by intellectual property rights. In May 2021, after a long period of steady opposition from high income countries, the Biden Administration changed course and signaled support for a waiver of certain intellectual property protections. At the time, I on these developments, noting how the scope of a waiver that countries like the United States (and the others that would now come to the table) would agree to remained a key and complex issue. Critically, the Biden Administration’s announcement did not directly support the waiver initially proposed 7 months prior, which was purposefully broad, and many took this as a sign any waiver eventually agreed upon would be much narrower.

Almost 18 months later, the first real development in terms of an agreement has been reported with the US, EU, India and South Africa close to agreeing on a significant “compromise.” Where the original waiver proposal also looked to eliminate barriers created by IP protections related to accessibility to necessary technology in the areas of diagnostics, P.P.E., and other therapeutic drugs, the leaked text shows that the potential agreement will only immediately cover COVID-19 vaccine patents. While the text is said to have a provision where WTO members will vote on the inclusion of these additional interventions within 6 months, given how the negotiations have proceeded thus far, there are many reasons to doubt that the additional aspects to the agreement will come to fruition. While they note that no official agreement has been reached, the US that the leaked text offers “the most promising path toward achieving a concrete and meaningful outcome."

Immediate reaction from both sides of the “waiver debate” have been somewhat negative, and continue to represent the complex balancing act between exclusive protection for IP and the need for appropriate and timely public access to health technology during a pandemic. Those in favour of a complete waiver have continued to express that these technologies, which include rapid and affordable testing and novel anti-viral treatments are becoming equally important in the short and long-term global effort against COVID-19 and emerging strains. Further, some have how the leaked text creates novel barriers in relation to the use of compulsory licenses, as point 3(a) of the compromised text notes that while eligible WTO members may issue a single authorization for individual products, countries are required to “list all patents necessary” for production and supply. As this would include patents for all underlying fragments and processes related to the vaccine, it would be far more burdensome than what is currently required under the TRIPS agreement.  

Those in opposition of the waiver remain with the view that the waiver does little practically (in addition to current flexibilities under the TRIPS agreement) to support greater accessibility to vaccines. Where there are also questions about whether supply is even a key issue at this time, a waiver of patent protections still does little to close key information gaps in technical processes and restrictions on use of trial data. The fear remains that the waiver would only serve to negatively impact the foundational incentive structure for research and development into vaccines, especially those targeting emerging pathogens.

While positive sentiment has been given by those like WTO Director-General Ngozi Okonjo-Iweala, who has the leaked text a “breakthrough,” the true impact of any waiver remains uncertain. Certainly, the true effects on future use and liability of significant technological innovation created during the “COVID period” remains immeasurable.

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Michelle Mao is an IPilogue Writer and an incoming 2L JD candidate at Osgoode Hall Law School.

Soon, manufacturers will be able to use NIH-licenced technologies to develop COVID-19 technologies for sale and distribution to low and middle-income countries. This is because the has finalized its its NIH-owned COVID-19 technology patents to the and the ’s (WHO) ). There will be a total of shared, including technologies supporting vaccine development, drug and diagnostic development, and prospective vaccine candidates. These technologies will be brought under a global and non-exclusive licence. Additionally, under the agreement, the NIH for products licensed in the United Nations’ .

While it may feel like the pandemic is ending in higher socioeconomic countries like the United States and Canada, vaccination levels in low-income countries are still , at around 15.9% first-dose vaccination rate. This continues the trend of COVID-19 pandemic leaving low-income countries in the face of expensive, patented COVID-19 vaccines and drugs. Allowing manufacturers to access previously patented technologies to develop their own products can dramatically decrease the cost of accessing COVID-19 technologies. A wider pool of manufacturers creating their own products to supply to lower and middle-income countries means they must compete with other manufacturers to keep the cost of products low.

During the early stages of the COVID-19 pandemic, scientists across the globe raced to develop life-saving medicines that could end the global crisis. Those efforts are by intellectual property laws, allowing scientists to securely make scientific advances without the worry of another competing lab “stealing” their discoveries. Now, due to a combination of a well-developed COVID-19 scientific field and the global obligations of the United States, the NIH feels ready to agree to a global non-exclusive licence for several of its patented COVID-19 technologies.

This agreement finally comes after from scholars in public health, intellectual property, and scientists about potential global inequalities that could arise in vaccine and drug development in a global pandemic. Due to the lack of economic resources for lower-income and middle-income countries for vaccine doses and a to manufacture their own COVID-19 medicines, it was predicted that lower-income countries would be hardest hit. Additionally, from the beginning of the pandemic, health-advocacy organizations have for pharmaceutical companies to share their patent knowledge so that lower-income countries can produce their own generic versions of COVID-19 drugs.

While the sharing of NIH-licensed COVID-19 technologies comes as good news for lower and middle-income countries still grappling with the pandemic, this licensing agreement may have come too little, too late. The pandemic has already swept through a majority of nations where many lives may have been saved if there was quicker and wider access to the life-saving COVID-19 vaccines that the higher income countries had first access to.

In future global crises, the problem of balancing intellectual property protections with global cooperation and socioeconomic inequality will continue. Hopefully, the COVID-19 pandemic can shed some light on how future policy considerations can be made to protect scientific innovation while minimising the sacrifice.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.��

To read part 1 of this article, click .

In September 2020, against former UBC employee and Open Education Librarian Ian Linkletter for tweeting  links to Proctorio's Help Centre YouTube videos for instructors and taking a screenshot of the website. In its lawsuit, Proctorio sought a declaration that Linkletter infringed its copyright, circumvented technological protection measures, and breached confidence. The company was also granted an interim injunction preventing Linkletter from sharing further links and videos from their websites.

Linkletter defended his actions, admitting to the tweets but denied copyright infringement or breached confidence. In his defence, he also identified the Proctorio lawsuit as part of a growing trend of "SLAPP" litigation — Strategic Lawsuits against Public Participation — intended to deter and ultimately silence outspoken critics and inhibit participation in public affairs.

On March 11, 2022, the decision was released, written by Justice Milman of the BC Supreme Court. The issues at stake were whether the action should be dismissed under s. 4 of the BC and if the injunction should remain in its present form.

Breach of Confidence

Section 4 of the PPPA states that the applicant may apply for a dismissal order on the basis that the proceeding arises from an expression made by the applicant, and that the expression relates to a matter of public interest. The leading case for interpreting this section is , where the first branch of the test requires an applicant to demonstrate on a balance of probabilities that the action arises from one's expression that "relates to a matter of public interest" (Pointes at para 23). If successful, the action must be dismissed unless the other party can demonstrate that (1) there are grounds to believe that the action has substantial merit; (2) the applicant has no valid defence; and (3) the harm suffered as a result of the expression is serious enough to outweigh the public interest protecting the expression.

Proctorio did not dispute the fact that the ongoing debate of the impact of its software was of public interest; rather, it focused on Linkletter's supposed malicious intent and sharing of confidential links. Milman J. was not persuaded on this point, stating that "[Linkletter] was using the content of the videos in an effort to illustrate his point about the harm that Proctorio's software was capable of causing to some students" (para 50).

Milman J. then proceeded to discuss the merits of Proctorio's case against Linkletter, assessing whether the tweets constituted a breach of confidence. On the one hand, he found that Proctorio's choice to host the help videos on a website such as YouTube over other secured options weakened the case that the information Linkletter tweeted out was confidential. However, he also considered that the unlisted videos were accessed through Proctorio's Help Centre, which Linkletter entered through the instructor sign-in portal and was thus subject to Proctorio's Terms of Service that restricts sharing. Milman J. found that Proctorio met its burden under s. 4(2)(a) of the PPPA to show there were grounds to believe that its claim for breach of confidence has substantial merit and that there are no valid defences to it (para 83).

Copyright Infringement and Fair Dealing

Proctorio, as a copyright owner under , argued that hyperlinking to the unlisted videos constituted an infringement of their copyright. Milman J. agreed, noting that the links were only accessible via the Help Centre for users logged in as accredited instructors or administrators. With regards to the tweeted screenshot, Linkletter successfully argued that the image was not "a substantial part" of the copyrighted work in which the Copyright Act's s. 3 protects.

Lastly, Milman J. discussed Linkletter's defence on the basis of fair dealing (s. 29 of the Copyright Act) and non-commercial user generated content (s. 29.21). Whether or not a dealing is "fair" depends on the purpose, character, and amount of the dealing, as well as possible alternatives, the nature of the work, and the effect of the dealing.

Milman J. accepted that Linkletter's real purpose in copying the links to his Twitter feed was to demonstrate his point about the harm he believed Proctorio's software was causing students, arising out of a genuine sense of public duty rather than malice (para 107). However, he was unable to conclude that it was necessary for Linkletter to share all the videos he did in order to make his point. He also found that Proctorio had a legitimate interest in keeping the instructional materials private only to instructors and administrators. In sharing the links, Milman J. found that Linkletter created a risk that Proctorio's product would be rendered less effective for its intended purpose (because students would be able to anticipate how instructors configured Proctorio's invigilation settings) and that its proprietary information would be made more readily available to competitors (para 112). These risks were found to be unlikely to materialize and mainly speculative.

The Status of the Injunction

Milman J. found that the injunction granted to Proctorio was granted in overly broad terms, and the injunction ought to have been framed more narrowly so that it prohibited "no more than the conduct [Milman J.] found to be properly actionable, namely, Mr. Linkletter's public sharing of materials posted on the Help Centre and Academy webpages, and encouraging others to do so" (para 145).

Conclusion

In summary, success for each party was divided. As of April 13, 2022, Although the resolution is still unclear, it is certain that this case — — has about the ethics of AI-powered invigilation methods worldwide.

Further Reading

Linkletter's defence and GoFundMe (donations closed):

The New 91��ɫer's deep-dive on online test-monitoring:

The Coronavirus pandemic and surge in demand for exam proctoring:

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Photo by Kaitlyn Baker ()

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.��

With the emergence of the pandemic, schools across the globe had to rapidly shift to new testing mechanisms in line with stay-at-home lockdown orders. Remote invigilation and AI software seemed like the tools to support instructors and prevent cheating on exams that were suddenly shifted online. However, the rise of companies like were coupled with criticisms of fully-AI invigilation systems: and , , and and algorithms quickly came to the forefront. Various penned open letters and petitions hoping to curtail the use of invasive remote proctoring software that tracks eye movements, facial expressions, spatial information, and more. Part 1 of this article series will discuss the background information pertaining to , including how the lawsuit began.

On June 25, 2020 on the University of British Columbia (“UBC”) reddit forum, instead spiraled into a confrontation with the CEO of Proctorio, Mike Olsen. Under the username artfulhacker, Olsen responded to the criticisms of Proctorio by While the responses to Olsen are intact, Olsen’s reddit account has since been deleted, along with all his inflammatory comments.

. At the time, he was employed by UBC as a Learning Technology Specialist and Open Education Librarian. He had already been looking into Proctorio’s services when the incident occurred. He called Olsen out on Twitter and Reddit, . These were taken from Proctorio’s help website for instructors.

In September 2020, Proctorio for eight tweets of links to the unlisted videos and for posting a screenshot of the help website. Aligned with Linkletter’s belief in free speech and privacy concerns in the public interest, his entire defence can be found here.

Part 2 will look at the actual decision by Milman J. from March 25, 2022 and examine the comments on free speech and fair dealing for the purpose of criticism.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

Session III from the focused on IP in the context of the Covid-19 pandemic. The economic impact of Covid is not as bad as expected, partly because of the prosperous IP industry in the digital world. The pandemic, in effect, accelerated the development of IP-related entrepreneurial activities. The presentations in this session look at the power of IP in economic and social growth.

In the first presentation, Carolina Arias Burgos, an economist at , discussed trademark filing as a leading indicator of the state of the European economy. Data shows that EU trademark filings correspond well with other economic indicators such as employment, domestic demand, GDP, and the overall attitude of investors toward a particular market (sentiment/confidence indicator). Domestic demand, confidence indicator for the retail sector, and Gross Capital Formation have cyclical correspondence to EU trademark filings. The values of these indicators are closely interrelated, shaped by their past values and the current and past values of other indicators (Multivariate VAR models).�� Burgos is still working on the model to include more variables and restrictions in VAR. It will hopefully generate more accurate forecasts in the future.

The second presentation examined and ‘s study taking a textual approach to analyzing trademark activity during the pandemic. They extracted the goods and services statements from around 300,000 trademark applications between 2010 and 2021, and the study looks at the topics and word meanings of these applications. Their research shows that pandemic-era trademark activities fundamentally changed in the application text context. These changes vary based on Nice class and application country origin.

and , from (ICTC), focused their presentation on the interaction between foreign direct investment (FDI) and IP in Canada. Their research employed a thematic analysis / grounded theory approach and 43 semi-structured interviews. It finds that various factors attract FDI; they include market size, talent, private investment, exit planning, government regulations, financing and innovation infrastructure, etc. Their research also identifies the aspects that can strengthen the impact of FDI on Canadian innovation, such as the VC/PE ecosystem, tax planning, procurement, IP literacy, and access.

, , and presented the they developed that educates students on IP in applied research settings. A consultation with 50 respondents from Ontario colleges undertaken early in the project indicated that 90% of them had little IP knowledge. In response to the virtual learning strategy of eCampus Ontario, they developed this online program to raise IP literacy in the context of applied research in colleges. It is an interactive module that turned out to be very effective in educating the participants.

Data shows that IP-related industries continued to prosper during the Covid-19 pandemic. Researchers are working on studies that identify and explain its development.

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