Beyond a suggested resurgence of the principles that were last year, C-56 contains many backdoor revisions to the Trade-marks Act that do not pertain to counterfeiting. In addition to an extensive list of remedies (see Adam Stevenson's article ), including the creation of multiple (and stricter) , C-56 would extensively broaden the definition of a trade-mark. The proposed amendment to the definition reads:

“49.��If a��sign or combination of signs��is used by a person as a trade-mark for any of the purposes or in any of the manners mentioned in the definition “certification mark” or “trade-mark” in section 2,��no application for the registration of the trade-mark shall be refused and no registration of the trade-mark��shall be��expunged, amended or��held invalid merely on the ground that the person or a predecessor in title uses the �ٰ������-����������or has used it for any other of those purposes or in any other of those manners.” [underlined text indicating proposed amendments]

One key addition here would be the “combination of signs”, which would vastly expand the scope of what can comprise a trade-mark beyond the traditional forms. As of the first reading of the bill, signs would now include: “a word, a personal name, a design, a letter, a numeral, a colour, a figurative element, a three-dimensional shape, a hologram, a moving image, a mode of packaging goods, a sound, a scent, a taste, a texture and the positioning of a sign.” These changes would mean that you could register trade-marks for purely intangible sensory phenomena such as scents, tastes, and sounds (which has been ). Also, in a semantic modernization, the entire Trade-marks Act would be amended to replace “wares” with “goods”, to reflect common modern language.

The bill also suggests clarity of the registration of marks related to utilitarian features. Specifically, it would amend s. 12(2) to prohibit the registration of trade-marks where “its features are dictated primarily by a utilitarian function”. Moreover, s. 20 would provide clarity that trade-marks can not be used to prevent others from using utilitarian features affiliated with the trade-mark. Another change associated with promoting public use and progressiveness is the proposed s. 18.1 which would allow application to the Federal Court to expunge a registered trade-mark that “unreasonably limits the development of any art or industry”. This would bring the trade-mark system in Canada more in line with the underlying principles of the as a matter of public interest. These suggested provisions would represent a shift more toward “user rights”, which was also seen with the expansion of fair dealing provisions in the Copyright Act last year with .

A number of the proposed amendments to the Trade-marks Act pertain to the power of the Registrar, reflecting recent caselaw. The Registrar would have the right to refuse an application with respect to one or more of the goods or services specified and accept it with respect to others. He would also have the power to strike any part of an improperly pleaded Statement of Opposition, so long as it was done prior to the filing of the applicant’s�� counterstatement (s. 38). The application process would be substantially changed, including the power being assigned to the Registrar to set regulations to establish the dates of registration for divisional applications to be re-merged (another new aspect of the Act; s. 39.1). Further clarity into the role of the Registrar includes the right to destroy records related to stale applications and registrations, within 6 years of the date of the final decision (s. 29.1) and a right to keep electronic records (s. 64). Finally, while the Registrar typically exercises no jurisdiction over correcting obvious errors in the records (it is presently subject to application to the Federal Court), ss. 41 and 48 would allow the Registrar to correct obvious errors within 6 months of entry and to remove registration of improper transfers, respectively.

Undoubtedly, the proposed amendments to the Trade-marks Act represent a modernization of the Act similar to that imposed by C-11 on the Copyright Act. However, a problem lies in the intention of the bill, which is purported to target counterfeiting. In my opinion, this bill mirrors the type of ‘omnibus’ legislation that drastically and broadly reformed the , in the form of the wildly controversial . While some of the reforms suggested here will be welcomed to update archaic or out-of-date aspects of the legislation, the overall package of Bill C-56 is bound to be controversial. The , but I think that is unlikely the Conservative majority will waver. One thing is certain: the drama will be intriguing.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The Living Daylights (…Scents, Tastes, and Sounds): Bill C-56 Forebodes Drastic Trade-mark Reform appeared first on IPOsgoode.

The criticisms from Australia concerning the patenting of genes echo those expressed throughout the North American battle. The primary attack on assigning patents of genetic materials to a company surrounds the invention component of the patent. Australian patent lawyer and proponent for ‘free trade’ of genetic materials, , likens companies such as Myriad to ‘cartels’, emphasizing that the genes are not something that anyone has invented. that allowing gene patents will permit patents on any biological materials that are artificial, irrespective of their source.

In an extremely accessible and , the Court surveyed the biological principles necessary to consider gene patents (this comprises more than half of the decision, and I strongly recommend it to anyone without a strong background in biological or medical sciences). The Court accepted the arguments of Myriad’s Australian lawyers, who leaned heavily on the arguments put forward by Myriad in the (although it noted that due to differences in the patent legislation and jurisprudence the American case itself was neutral, benefitting neither party). It was held that:

(1)�� because the genes are not naturally occurring DNA or RNA as they exist within the cells of the human body (which are not patentable, per ), they are not precluded from being the subject of a valid patent, and

(2)�� the patent claims to the genes are indeed to a manner of manufacture as required by .

With respect to (1) above, the Court was very conscious of the legislative intentions in drafting s. 18 of the Patents Act. In para 112 of the decision, it was acknowledged that a proposal was brought and subsequently rejected that would have included isolated DNA and RNA in the s. 18(2) provision. As such, it was left to the Courts to deal with the issue of gene patenting by establishing jurisprudence.

The Court found that because the patented nucleic acid sequences for BRCA1 and BRCA2 are independent and isolated for native DNA, it is patentable. Furthermore, because the sequences could not exist in isolation without human intervention, the patented matter consists of “an artificial state of affairs” (see paras 101-110), a necessary condition for invention in the Australian legislation. Even if it has been removed from a biological cell, the Court held that it is reasonable to deem the isolation ‘artificial’, emphasizing the process of isolation rather than the extracted material.�� Addressing broader concerns, Myriad’s counsel also emphasized that��the screening process of the patent, which includes the diagnostic component of comparing normal and mutated genes, could not be used .�� However, in my opinion, this does not address the important issues of access to medicine and the potential detriment that the patents pose to scientific progress.

The present case was in the form of a lawsuit brought by a national organization representing cancer patients, , and a Brisbane cancer survivor concerned with the impact that the gene patents will have on breast cancer diagnosis and treatment. I share these concerns. Indeed, I have about Myriad’s monopolization of the market and the conflation of trade secrets and patents, so I would direct your attention there for this discussion. However, for those opposed to the patenting of genetic codes and the processes for isolating genes, this Australian decision certainly gives reason for concern. That said, Myriad’s victory down under may be short-lived, as Cancer Voices Australia announced on March 3, 2013 that they to the decision of the Federal Court.��

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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Full results from the Harold G. Fox Canadian Intellectual Property Moot can be accessed .

was a crafty piece written by and his esteemed colleagues at . The problem��took advantage of the recent developments that the Supreme Court of Canada’s have brought to infringement and fair dealing. Specifically, we were compelled to argue first whether the shortening of a licensed, long-lost Batman film to a song-specific clip (“Batman Style”, popularized by the fictional Korean artist “Pi”) infringed the copyright of the appellant’s sound recording. Second, if infringement was established, we turned to whether the respondent, Professor Michael Caine, could rely on the “private study” exception for fair dealing in providing the sound recording in its original context within the cinematographic work. It was a very fun problem, and I had the particularly onerous task of arguing that Caine’s usage was indeed fair dealing with the work.

The Osgoode team that I proudly represented consisted of myself (, Class of 2014) and Ryan Keller (Class of 2014) representing the respondent Michael Caine (and we had the pleasure of enduring many “Team Ryan” and “R-Squared” colloquialisms throughout the moot), David Bowden (Class of 2014) and Robert Trenker (Class of 2014) representing the appellant Thomas Hardie Music, Inc, with (Class of 2013) rounding out the team as our invaluable researcher.�� We all took Legal Reform seminars with ��in the fall 2012 term, and we all soon found out just how valuable Professor Vaver’s tutelage was.

Our preparation was extensive. We received the problem in mid-November, but with the time constraints that fall exams placed upon us, we did not sink our teeth into the problem until mid-December. Our fantastic coaches, , , and from provided us with timelines and support throughout the process, which was invaluable.�� IP Osgoode's own served as the faculty advisor to the team.�� Speaking on behalf of the entire team, we would like to offer our deepest thanks to them. We owe a great deal of our success to our coaches. After countless hours of factum prep, including many Google Doc and Skype sessions, our appellant and respondent teams submitted our respective facta for grading by the Fox Moot Committee in early January. Then began the oral preparation. We had many grinding practice sessions with constructive feedback from our coaches at Cassels (who themselves argued many of the cases that we cited at the Supreme Court – giving us unique insights regarding appellate advocacy) as well as innumerable team sessions, and we quickly found ourselves ready to moot!

The Fox IP Moot took place this past weekend (February 22-23, 2013) at the Federal Court of Canada, in downtown Toronto. Teams from five law schools across Ontario competed for the Harold G. Fox Cup: Osgoode Hall Law School, Queens University, University of Toronto, University of Windsor, and Western University. The competition began on noon Friday with the Fox IP Lecture, delivered by the Honorable , Chief Judge of the United States Court of Appeals for the Federal Circuit. Chief Judge Rader gave a highly entertaining lecture: IP Rights – Do the Remedies Fit the Infringement?, which spoke to the forces that he perceives as governing IP law. While I was disappointed that the "forces" did not pertain to a Jedi versus Imperial struggle, I was captivated by his views on the misconceptions of “patent trolls”, the strong influence of the media on IP cases, and the “culture” of using litigation as a commercial strategy. However, what stood out to me the most was his concerns about the re-entry of the non-expert jurist in the field of IP. In a personal conversation, he acknowledged that IP is becoming a more “sexy” field of law, and the Supreme Courts (most of which do not have IP experts, save for the Honourable of our own Court) are taking a greater interest in what has historically been the predominant realm of the Federal Courts. He cited the primary difference as one of approach, where the Federal Courts emphasize bright line tests and administrative standards, other Courts favour reasonableness standards. I could talk in much greater length about this riveting lecture, which also included strong encouragement for students to learn international IP law and references to , but in the interest of space, I must move on.

Shortly after the lecture (which was delivered while we enjoyed a decadent lunch at Arcadian Court), the first of two preliminary rounds started. New to this year’s competition, each appellant and respondent team would face the opposing side of every other school. This meant that we would moot twice in each of the two preliminary rounds (with the second held Saturday morning), with the aggregate score of our four preliminary moots and our factum determining which teams would move on to the playoff rounds. In the preliminary round, each panel consisted of one jurist and two IP practitioners, which made for a challenging and interesting dynamic. I must say that the that Dimock Stratton was able to attract to this event was, as always, top notch and we were truly humbled in appearing before them.

The preliminary rounds were a lot of fun, and some of the panels were incredibly challenging. I personally faced the difficult task of convincing some very “user rights” focused professionals that we should broadly interpret “private study” in the context of fair dealing. All of our team members became very passionate about our positions, and this certainly helped our persuasiveness in the Moot Court. After each round, we were given extensive feedback from the panels, which was a unique and fruitful way to develop our advocacy skills. Learning from the perspective of judges, who regularly hear appeals, and practitioners, who regularly make them, was one of the greatest benefits of this competition. Perhaps my favourite (and potentially embarrassing) piece of feedback was from the Honourable Justice Lois Roberts of the Ontario Superior Court who praised my voice, calling it “beautiful” and suggesting that I should be a singer. However, I refrained from serenading future judges. Justice Roberts also invited us all to sit in her seat at the bench, allowing us to gain her visual perspective, which made us all cognizant of the subtleties that the judiciary can pick up on.

After lunch on Saturday, the semi-finalists were announced, and we were extraordinarily lucky in that both of our teams advanced. Myself and Ryan as the respondents placed first among respondents in the preliminary rounds, while David and Robert placed second among appellants, in what were both inevitably close races. In a strange and wonderful twist of fate, this set the stage for an all-Osgoode semi-final round in front of the Honourable Justice Robert Blair of the Ontario Court of Appeal, the newly appointed Honourable Justice Michael Manson from the Federal Court, and the Honourable Konrad von Finckenstein, Q.C. a former chair of the CRTC. We both had undoubtedly our best rounds to date, bringing our best arguments forward while facing a very sophisticated and challenging bench, and had a lot of fun doing it. To faceoff against our own teammates who we have been working, commiserating, and practising with for months was exciting and a great way for the moot to come full circle.

In what was later described to me by Justice Manson as the toughest decision that he has made as a jurist yet, our incredible respondent team, David and Robert, moved on to represent Osgoode in the finals. Ryan and I could not have conceded to better opponents. In a packed courtroom full of other competitors, practitioners, friends, and academics (including IP Osgoode Director��Professor Giuseppina D’Agostino), David and Robert faced the University of Toronto respondent team who had trumped the Western appellants in their semi-final round. Although the teams were anonymous to the judges at the time, this created a Subway Series that the Fox Moot had never seen before, and a proper (yet cordial) grudge match. In a panel that most experienced litigators would fear, our finalists’ submissions were received by five judges: Justice Rothstein, Chief Judge Rader, the Honourable Justice Stephen Goudge of the Ontario Court of Appeal, the Honourable Justice David Stratas of the Federal Court of Appeal, and the Honourable Justice Judith Snider of the Federal Court. Both teams were challenged early and often, with Chief Judge Rader proving to be particularly adversarial, hitting each oralist with a broad and difficult question within 30 seconds of commencing. Each of the four oralists were graceful, deferent, and rose to the occasion.

We were kept waiting for a few hours until an awards dinner at the University Club. In the end, Osgoode was triumphant with David Bowden and Robert Trenker claiming the Harold G. Fox Cup for the best mooting team. Myself (Ryan Heighton) and Ryan Keller took home the Gordon F. Henderson Award for the (which we could not have done without the hours of editing and revisions by Danny Titolo). The Donald F. Sim and Dimock Stratton LLP awards for best oral advocate and best mooter in a non-graduating year, respectively, went to Kevin Siu from the University of Toronto respondent team. Needless to say, we are incredibly proud to be members of the Osgoode community and represent the school well at such a prestigious event.

I could easily write another 2000 words to further texturize all of the exciting, nerve-wracking, and hilarious things that happened this weekend and it would not do this event justice. Perhaps the biggest thing that I will take away from this moot is the value of collaboration in law. As with many other fields of law, the intellectual property bar is incredibly collaborative, cordial, and this is evidenced by the generous and vast that the event received. Indeed, this event would not be an annual resounding success if not for this collaboration. We would like to thank all of the sponsors, the organizers, our coaches, and professors for making this possible. The event was orchestrated flawlessly, the abundance of food and drink at the receptions was remarkable, and everyone involved was incredibly accommodating and friendly. On a more personal note, I want to thank my teammates for making this a truly enjoyable and enlightening experience. I truly believe that we were as successful as we were because of our great collaboration and constant challenging of one another, and this will certainly persist as one of my most memorable law school experiences.

As a parting note, I would just like to remind all of the gentlemen reading this to heed the advice of Madam Justice Snider, and be sure to button up your jacket when you stand before the Court.

(from left) Danny Titolo, Ryan Heighton, Ryan Keller, David Bowden, and Robert Trenker comprised the award-winning 2013 Harold G. Fox Moot team for Osgoode Hall Law School.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School and was a proud member of the 2013 Harold G. Fox Moot team for Osgoode Hall Law School.

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It����that Myriad has been retaining clinical data concerning BRCA1/2 mutations as trade secrets, stemming from their control over BRCA1/2 research. By claiming mutation information from clinical trials as proprietary, Myriad is failing to disclose valuable information that is secondary to their patent of the initial genes, and potentially impeding research on the genes that could result in life-saving developments. This brings concerns around the circumvention of the parameters and breadth of their initial patent, as well as the convolution of the patent as a means of shrouding their company data in trade secrecy.

Typically,��; in exchange for disclosure of the information surrounding the invention (which is in the interest of furthering innovation), patent holders are granted legal protection from others using their patented invention. Trade secrets do not afford legal protection, and anyone obtaining the secrets (typically excluding those under contract) may use them freely. Of the greatest concern is that even if the BRCA1/2 patents are invalidated in court in the Spring, Myriad will still be privy to the clinical data collected under the invalid patent. Such unconscionable use of the patent system directly violates the����on which the system was built.

The primary public health consideration in Myriad’s decision to retain clinical data as trade secrets is the����that has resulted from their retention of mutation information. This is a particularly great concern, as Myriad����with BRACAnalysis. By retaining clinical BRCA gene mutation information in America, but not releasing it publicly, Myriad has ensured that consumers utilizing their test will receive more reliable results. At present, it has been reported that as a result of the vast mutation data and algorithms that Myriad has collected since releasing the BRACAnalysis test, only 3% of mutations will be of unknown significance. This contrasts unknown variant rates of 20% using other tests, including those presently in use in Europe. This means that Americans utilizing Myriad tests have a significantly greater chance of having their genetic variants identified, which is essential to therapeutic counseling. Further, as a result of this trade secret ‘loophole’ in the American patent system, which mirrors our own in Canada, Myriad will possess an inherent competitive commercial advantage over European BRCA tests despite not holding a BRCA patent in Europe. By allowing this type of action, a dangerous precedent is set in the field of biotechnological research, where research facilities may use patents as swords in order to protect vast trade secrets and monopolize a market, contrary to the public interest.

Beyond commercial interests, the primary function of scientific research in society is to serve the public good. This is particularly true in the case of medical research, as the ultimate goal is to benefit patients and improve diagnostics, treatment, and preventative medicine. Patents have become��, in order to encourage innovation and provide commercial protection and incentive for researchers who make significant breakthroughs. However, in the United States, it has been shown that����as of 2005, with most “inventors” overstating their discoveries surrounding the code, while others were granted protection for genes that had not been “discovered” yet (e.g., mutated or isoforms, with no description of the genes).

In my opinion, Myriad Genetics is a company benefitting from relatively lackadaisical biotechnology patenting standards. In addition to holding a (thus far) valid patent on the two primary diagnostic genes for breast and ovarian cancer,����through��, which has been described as the most efficient breast cancer test commercially available. Holding the American patents for the BRCA genes has ensured that Myriad has been able to turn a profit after pouring millions of dollars into research and development, and has in turn improved the diagnostic potential of medical practitioners. However, with this advancement in medicine has come at great cost to the public. By creating geographical inequalities (resulting from the limited scope of Myriad’s services), Myriad is effectively compromising the therapeutic services provided to women worldwide, solely to advance their economic interests. Thus, despite creating an incredibly useful database of mutation information and algorithms, Myriad has effectively created a monopoly, and, in my view, has violated the promotion of innovation and discovery that the patent system is designed to serve.

Their��, combined with what is regarded as an unreasonably high cost for the BRCA testing has led to allegations that Myriad is engaging in����by compromising the interests of public health in order to turn a profit. In my opinion, while the patent system certainly serves as a means of providing financial restitution to researchers and facilities that take financial risks in the interests of innovation, there comes a point when the public interest is being jeopardized out of greed. Such compromise of the public interest, especially in a medical research context, is contrary to the spirit of the patent system, which is to provide information to the public to improve transparency in innovation.

With the completion of the��, the United Nations identified the risk of abuse of advancing biotechnology, and the����took effect. Of particular importance is Article 12, which indirectly relates to gene patenting and freedom of research. It takes specific note of the unique nature of the genome, which is within all humans, and declares that the genome should be free to research in the interest of advancing bioscience and medicine. Additionally, and in my view damning to Myriad’s trade secrets and imposed geographical inequality, it declares that the benefits of advances in genetics and medical science be made available to all. Although this is not a binding legal document, it was carefully considered, is highly persuasive, and contemplates essential concepts in bioethics which may factor into the Supreme Court’s 2013 ruling.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post Live and Let Die: Gene Patenting Plot Thickens as the Patent/Trade Secret Line is Blurred appeared first on IPOsgoode.

While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that��plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement.��The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was ��pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The “Word” Is Not Enough: New Cybercrime Prevention Act Leaves Philippine Plagiarists Criminally Vulnerable (UPDATED) appeared first on IPOsgoode.

There is certain market resistance to the notion that diamonds could become an investable resource, largely due to the fact that it would create a more objective pricing scheme.��It has been difficult to establish an investable market for diamonds due, in no small part, to their uniqueness. The price of diamonds is dependent not just on mass (like gold), but , as well. Even slight variations have drastic influences on the price of the gems. Additionally, unlike gold, diamonds decline in value when divided, and are in too short supply to be used as a currency, which has inhibited the creation of a . However, it is important to note that only approximately 30% of mined diamonds are used for jewelry and sold as precious gems, with the .

In addition to the difficulties inherent in standardizing price based on gem quality, resistance from some within the industry has hindered the development of a standardized market. This is because the would increase transparency in pricing, protect against inflation, and open a narrow market to a large number of investors. However, individuals such as Rapaport have fair, efficient, transparent, and free diamond markets, as it would benefit the economy and the surrounding diamond mining. Indeed, Rapaport’s efforts have led to the , an international initiative to “clean up” the diamond market and reduce the trade of conflict diamonds.

Beyond politics, however, how do we get around the issue of variability in the gems to create a more open market for diamond trade? The answer may be within recent patents.

, an investment firm that declares diamonds to be the “last untamed commodity”, that details a process to create fungible diamonds. That is, they seek to create benchmark “baskets” of diamonds based on the quality indices, ultimately creating diamond securities through their patented formula of determining “investment grade” diamonds. Ultimately ten “layers” of quality/value would be created using the GemShares method to create such benchmarks, and it has been projected that these indices by mid-2013.

wants to take the process one step further. A producer of synthetic (lab-grown) diamonds, they have acquired that will allow them to produce single-crystal diamonds with identical chemical composition to those that are naturally occurring. Beyond this ability to create near perfect diamonds, Scio can mass-produce batches of identical, made-to-order diamonds through their use of plasma reactors for growth, and new throughputs for productivity. Indeed, earlier this month, Scio indicated that their first three months of production . It would seem that Scio’s patents have already begun to shape the budding diamond markets, and perhaps not in the way that economists may hope. By having one company hold patents for high-throughput production of museum-quality gems, it creates a different sort of monopoly. Moreover, if their production is as high as they indicate, it could reduce the value of existing diamond markets through oversaturation before a competitive market is even established. It is quite likely that both GemShares and Scio stand to make large profits as a result of their patents, but the sustainability of their prospective market remains to be seen.

Whether the standardization of diamonds is socially beneficial is more of an ideological debate, but one with economic implications. Of course, diamonds have long been coveted for their uniqueness, but that very uniqueness may be hindering an openly investable market. However, if such a market is developed based on the creation of uniform stones, will the allure of the stones still be as strong? Only time will tell…

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.

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Mulcaire had been attempting to shield himself under the privilege against self-incrimination in civil proceedings centering on the alleged interception of phone messages. Mulcaire’s argument was that the information involved did not constitute intellectual property. However, it was held that����applied to this action, which constituted an intellectual property dispute, negating Mulcaire’s privilege from self-incrimination.

The phone hacking scandal was initially exposed in 2005 when����that a private business discussion was printed in the News of the World. The intricacies of how his private phone messages were hacked, and the ensuing police investigation was explored in a . Mulcaire and former News of the World royal editor Clive Goodman were����for conspiracy to intercept communications without lawful authority (contrary to the��). However, years later, it became clear throughout an onslaught of civil litigation that the scope of the scandal within the corporation’s ranks went far beyond Mulcaire and Goodman and their illegal interception of information from the royal family. In July 2012, it was disclosed that����were victims of the phone hacking scandal, with����in conjunction with the scandal.

The����in the ongoing legal battle against Mulcaire will have wide implications for both the ongoing civil and criminal litigation surrounding the scandal, as well as the rights of respondents in future intellectual property litigation. It is dictated in����that the privilege against self-incrimination is withdrawn in “proceedings for infringement of rights pertaining to any intellectual property or for passing off”, which left the courts to establish the breadth of the definition of intellectual property in the context of this statute. Intellectual property is defined in����as “[meaning] means any patent, trade mark, copyright [design right], registered design,��technical or commercial information��or other intellectual property.” The primary issue in this matter was whether the intercepted information constituted intellectual property, which would withdraw Mulcaire’s privilege.

The claimant, Nicola Phillips, held that the intercepted messages contained����about her clients, which she contended would place the litigation in the realm of s. 72 under the technical/commercial definition of IP. Mulcaire argued that the phrase “technical or commercial information” was limited by the text “other intellectual property”, seeking to narrowly apply the term to pre-determined forms of IP. However, the Court held that IP is a broad term that is not restricted to conventional application, including the confidential commercial information that was contained in Phillips’ phone messages, even though they contained a personal component. A key distinguishing feature of this interpretation is that solely personal information is not included in the IP heading, unless there is a clear commercial component. This commercial component is exclusive of the ability to turn the information to financial advantage by disclosure to the media. In the present matter, the nature of the information in Phillips’ messages was of a sensitive business nature, and included information about clients’ finances, security issues, and business transactions. In view of the Court’s interpretation of “technical or commercial information”, it clearly fell under the heading, leaving Mulcaire unprotected by the privilege of self-incrimination.

This ruling will undoubtedly influence the����resulting from the scandal, and seems to have already influenced the criminal repercussions of the scandal. Although the police have not stated explicitly that it was Mulcaire's disclosure that led to further charges being laid,����to the police, Mulcaire and seven others, including Prime Minister Cameron's former director of communications Andy Coulson, were����in relation to the scandal. The group����in September 2012. These charges also indicate that the UK police may seek disclosure of evidence in civil proceedings that may be relevant to ongoing investigations. Professionals in field of private investigation will also likely feel the impact of this case, as the ruling will likely be interpreted as a check to the legality of their actions, especially when under the employment of ‘unsavoury’ clients. Finally and perhaps most importantly, it applies a clear and broad interpretation to the statutory definition of IP, updating the definition to include modern forms of communication that have become staples in the business world.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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Ultimately, the human rights of the complainants under were unjustly violated by the retention of photographs, with being exacted on minors. protects the right to respect for private and family life, effectively serving to protect citizens from unreasonable encroachment by the State into the private lives of its citizens. Particularly, Article 8.2 indicates that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The test for whether limitations of this right by the State are reasonable is akin to the of limitations under Section 1 of the Canadian Charter of Rights and Freedoms.

In the aforementioned case, R(RMC & FJ) v Metropolitan Police [2012] EWHC 1681 (Admin), the High Court deemed the policy of police retention of suspect photos following uncharged release to be an unreasonable limitation of Article 8 rights for three primary reasons:

1. No distinction was drawn between suspects that were convicted, charged and acquitted, or not charged at all,
2. Retention was indefinite and potentially infinite, and
3. The harmful effects on minors were not mitigated

It had that the indiscriminate or indefinite retention of DNA and fingerprint data of innocent people was unlawful in Europe, and the ruling in R(RMC & FJ) extended this breach to photographic data.

The concept of creating a database with biological and identity profiles of citizens is a controversial one. In R(RMC & FJ), the Met argued that such practices were a reasonable limitation of Article 8 rights due to necessity for preventing crime and disorder. While such practices would likely assist the police in investigations, a balance must be struck between private and public interests. By not discriminating between released suspects and convicted criminals, the ECHR privacy rights are essentially negated, and the police begin to overstep their power. Particularly in the cases where minors are arrested but released without charges, such as the complainant FJ in the present case, holding a record could be misleading and effectively “stack the deck” against an individual in the future if arrests were made. Such action by the police has been held to be a disproportionate use of power, and in violation of human rights guaranteed in Article 8.

Being arrested and interrogated is in and of itself a for innocent individuals, albeit often essential to the administration of justice. However, the High Court sent a clear message to the Met that such innocent individuals should be guaranteed the peace of mind that the experience of arrest will not be of legal detriment in the future if they are not convicted of an offence. Indeed, this is exactly the type of reassurance that Article 8 serves to provide.

These values have been mirrored in Canada, and Chantal Bernier, the Assistant Privacy Commissioner of Canada has suggested that . With respect to DNA databanks and the surrounding privacy issues, which also pertain to the retention of such personal information as photographs, she argues that the law enforcement response will not be effective if not focused (i.e., gathering only the information relevant to achieving its purpose). Through this approach, justice can be efficiently served while minimally encroaching on the privacy rights of citizens. Certainly, the High Court agrees with this approach and helped to clarify the boundaries of what is relevant information when balanced with privacy rights.

With advances in technology, it is evident that not only is��crime being enhanced, but also the power of the information in the possession of law enforcement. As such, the policies governing the conduct of the State must continue to adapt in order to protect our basic rights without obstructing justice, and the Courts have thus far done an excellent job ensuring that this is the case.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.

The post Quantum of Solace: UK Court Deems Police Retention of Uncharged Suspect Photos an Invasion of Privacy appeared first on IPOsgoode.

This post elaborates on the concept of criminal theft of IP, which I discussed at length in a with respect to software code, in the form of scientific research. In laboratory science, it is customary to keep a , which details all research conducted, including methodologies, applied results, and interpretations. The notebooks are the ultimate reference for raw, unaltered data, and are essential for troubleshooting and the transfer of knowledge within labs between experiments. Upon leaving a lab, graduate students and lab technicians typically leave their notebooks in the lab of the principal investigator (PI), who is the recipient of grant funding for the research project. However, the question of IP ownership becomes murkier when the PI is the individual looking to take possession of their notebooks and materials upon leaving an institution, .

With available in North America for public research, scientists are very secretive and protective of their results, as they are all striving to publish novel, groundbreaking work and posture themselves to procure funding. Thus, it stands to reason that Dr. Mikovits would want to take her work with her so that she could continue to continue her progress and publish her results elsewhere. However, in instances of potential IP theft, is the criminal court the proper venue for these matters?

The State of Nevada has suggested, despite Dr. Mikovits’ initial arrest, that no, these matters should be resolved by civil action. However, it has been suggested that the prosecutors withdrew the charges as a result of the of the CEO of WPI. Thus, the question of the criminality of such alleged IP theft may come up again in the future, particularly with the of the realm of science that is the result of scarce funding.

Even in Dr. Mikovits’ case, it is unclear that the criminal charges should have been withdrawn seven months after the charges were laid. Despite being a leading investigator, she was the employee of a research institution, relying heavily on their staff and equipment (not to mention the salary that she was paid). Although she should be afforded some sort of protection for her time and work, institutions should have guarantees as well. Most public research grants are administered to the individual under the condition that they are that moderates the funding process. Thus, the institution retains partial control of what is ultimately government-funded research. It is that researchers make publicly funded research available to the public-at-large, and the institution cannot ensure this if they do not remain in control of the data collected.

With respect to the factual nature of the criminal allegations, the charges in the present matter may have been dropped due to a technicality in what was already sure to be a complicated and landmark criminal matter. Dr. Mikovits did not personally remove the notebooks detailing her research, but had a . Should this factor into the concept of theft? Is “counseling to commit intellectual property theft” too far beyond the scope of what the criminal laws should regulate? These are questions that have not yet been answered in the courts, and are a minutia of the bigger issue of IP theft in science.

Whether criminal courts are the proper venue for IP theft is still open to interpretation, and unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft. However, the results of the will be particularly interesting to follow, as there are various interests at stake, namely: WPI (the institution), Dr. Mikovits (the researcher), and NIH (the government funding agency). The balancing of interests may set an important precedent and guidepost for how scientific research is both conducted and funded in the future, as this IP discourse between an institution and a former researcher is unprecedented.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post For Your Eyes Only: American Science Scandal Brings Possession of Scientific Data to Forefront appeared first on IPOsgoode.

Explicit Materials, Privacy Rights, and Freedom of Speech

One of the first issues to erupt from the pursuit of Magnotta surrounded the alleged snuff video of the murder being committed, which Magnotta was purported to have posted on a notorious “gore” website. Canadian Public Safety Minister Vic Toews, the champion for Bill C-30 (which has been challenged as of Canadians), has as an example of why Internet surveillance is an essential step in modernizing the Criminal Code to catch up with the digital age. However, my opinion is that there is a fundamental flaw in Mr. Toews’ logic. This flaw is that increased Internet surveillance would not have made any difference in this matter. The video was posted publicly, and both Canadian and American law enforcement agencies appear to have ignored tips regarding its existence.

It seems that the problem is not about individuals being afforded too much privacy, but perhaps that the desensitization induced by the Internet and free-sharing of information has stunted the reaction time of law enforcement. The general public has become accustomed to viewing shocking videos and information all the time, and the advent of modern horror movies has blurred fiction and reality. This brings issues of what is considered obscene material, and particularly, how are we to decipher real violence from twisted fantasy? Irrespective, there between encroaching on Internet privacy and effective law enforcement.

Beyond the issues of the reality of the gore video, it has been argued that the video served the ultimate utilitarian purpose of leading to the early identification of Magnotta as a suspect. Indeed, the host of the gore website has been of his website’s explicit material for this reason. While individuals are generally free to post their own videos at their liberty in various forums online, this video was a depiction of a glorified and sexually explicit murder. There are significant to consider when assessing the liberty that should be attributed with respect to obscene content. Moreover, the victim was certainly unable to consent to being featured in the video, and for a website to benefit from such an egregious act is in stark contrast to the protection against exploitation and degradation that is afforded by Canadian obscenity laws. This case may result in a very interesting fight between��freedom of expression rights (on a “public good” basis of honest reporting) and obscenity laws that

Labatt’s Attempted Brand Management

In addition to being and distasteful in the wake of a tragic murder, Labatt Breweries of Canada’s threat to pursue litigation against the Montreal Gazette for publishing an image of Magnotta holding a bottle of Labatt Blue poses a problem with respect to the perception of criminal law. It is a Canadian constitutional right that individuals charged with crimes are beyond a reasonable doubt. Despite the mass media frenzy against Magnotta, and the seemingly damning video evidence (discussed above), he is not yet a convicted killer. In my opinion, Labatt's outrageous��reaction��to a photo in an article, which made no direct mention of their brand, was tantamount to presuming Magnotta to being guilty of the alleged crimes before even being arraigned. To defend these actions as defensive of their brand, under the presumption that a photo of their product in the hand of a suspected killer will create negative associations with the brand, is insulting to the intelligence and discretion of the general public. I think that claiming brand protection for such a benign usage of a widely disseminated photo, originally published on Facebook by Magnotta himself, is unnecessarily litigious and an abuse of the legal process.

Similar issues of brand denigration through usage of trademarks have been with respect to Google’s AdWords system, which utilized trademarked names to generate Google’s “sponsored links” in search results. on the primary basis that companies possessing trademarks could suffer lost profit and reputation based on the advertising potential for counterfeit sites. The held in the joined suits that general Internet consumers are sufficiently aware and intelligent enough to understand the proper usage of trademarks. Thus, Google could not be held responsible for trademark infringement by third parties. As a result,��Labatt would not likely have a reasonable cause of action in response to the newspaper displaying a trademark in an image pertaining to something completely unrelated to the brand. Moreover, it is likely that Labatt would have to provide evidence that the display of their product in the image within the article caused actual loss, which would be quite difficult, particularly without causing harm to their own brand.

Indeed, despite in the end, it appears as though Labatt’s attempts to protect the integrity of their brand backfired, in what has been dubbed the Rather than mitigating any potential damage to the Labatt brand that the photo was expected to cause, Labatt inadvertently denigrated their own brand, with Twitter users making a game of poking fun at Labatt’s perceived paranoia. The missteps by the Labatt legal team in managing the company’s trademark were summed up in the wake of the Twitter-bashing by one :

“The sad thing about the ��is that the Legal team likely caused the mess and now the PR team will have to clean it up.”

This indicates the legal profession’s difficulties in keeping up with the digital age, and the widespread dissemination of information through social media. As legal professionals, it is essential to be cognizant of the digital repercussions of all actions, particularly with respect to high profile matters, as the reaction of the general public is now significantly amplified to the days before the predominance of social media. The photo in question originated in social media, and the actions of the Labatt legal team were exacerbated through social media. Law is not practiced in a vacuum. Gone are the days of a lawyer sending a threatening letter to indirectly obtain an injunction without litigation or widespread backlash. IP and corporate lawyers��should take note:��their actions��may be scorned (and quickly) if they are perceived by the public as unjust or ridiculous.

It is evident that the advent of technology, including Google, Twitter, and Facebook, has profoundly influenced the dissemination of news, as media outlets have innumerable instantaneous options to distribute information. These matters become more complex from a procedural standpoint in criminal law when potential criminal evidence is involved, as it is more difficult to control sensitive information. Moreover, the internet influences the law��in unexpected ways, and in view of the situations discussed here, it is evident that the legal system, including its professionals, need to catch up with technology.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.

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