M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was Originally posted on E-TIPS For Deeth Williams Wall LLP on November 10, 2021.

On October 27, 2021, the Office of the Privacy Commissioner of Canada (the OPC)����observations following a series of international engagements between data protection and privacy authorities around the world and four of the biggest video teleconferencing (VTC) companies: Microsoft, Cisco, Zoom, and Google (the Organizations).

Earlier this year, the OPC, along with privacy authorities from Australia, Gibraltar, Hong Kong SAR, China, Switzerland and the United Kingdom (the Joint Signatories), sent an����to several VTC companies commenting on the rapid recent expansion of VTC services and highlighting their concerns about whether the companies were implementing appropriate privacy safeguards in their platforms. The Organizations responded to the Joint Signatories’ open letter and described how they account for privacy principles in the design and development of their VTC services. This initial response led to a series of video calls between the Joint Signatories and the Organizations to discuss how the Organizations implement, monitor, and validate their privacy and security measures.

In its observations, the OPC discusses key areas that the Joint Signatories recognized as examples of good practice and recommended for adoption by the broader VTC industry. These areas include:

1. security, such as implementing a regular security testing schedule and ensuring employees and third-party sub-processors comply with privacy obligations;
2. privacy-by-design by adopting an overarching privacy program and placing all VTC settings at the most privacy protective by default;
3. audience-specific resources, including providing enhanced VTC safeguard features for parties that share sensitive information and custom-guidance documents to assist different groups to choose the VTC settings that suit them;
4. transparency through the use of layered notices and informing users of any sharing of their information with third parties; and
5. end-user control to enable VTC customers to decide what information they share when accessing VTC services and provide alerts when there is a danger that meeting information may become publicly available.

In addition to recognizing good practices, the Joint Signatures also identified the following areas for improvement:

1. making end-to-end encryption available to users;
2. clearly identifying any secondary use of users’ data and providing an option for users to opt-in to such processing; and
3. informing users and, if possible, providing them with the option to choose their data storage location and jurisdictions in which their personal information may be routed through by the VTC company.

Based on the success of the Joint Signatories’ discussions with the Organizations, the Joint Signatories expressed that the engagement process used in this instance may prove valuable in future circumstances where dialogue would assist in clarifying regulatory obligations, identifying good practices, and increasing public trust in emerging technologies.

The post Office Of The Privacy Commissioner Of Canada Releases Observations Following Global Initiative On Privacy Expectations For Video Teleconferencing Companies appeared first on IPOsgoode.

Photo By: (Unsplash)

Junghi��Woo is an��IPilogue��Writer and a 3L��JD��Candidate at��Osgoode��Hall Law School.

��

Privacy has been a reoccurring issue debated across the world as virtual communication is no longer seen as an option but essential to working remotely during a pandemic. The rapid spread of the COVID-19 pandemic may be said to have pushed society to forego privacy concerns for the quick, convenient ability to transition work to virtual platforms. Nowadays, work is almost impossible to achieve without the use of programs like Zoom and Microsoft Teams.

However, a year and a half since the lockdowns began, we may start to question if these platforms are safe to use. Many of us do not yet have the choice but as the world is, hopefully, starting to return to the office, we should strongly consider as we move forward whether our online data will ever be fully “protected”?

Zoom: The 2020 Icon of Remote Work

Zoom, an all-time favourite, recently agreed to pay over claims of violating users’ privacy rights through unconsented sharing of personal information with social media platforms including Facebook, LinkedIn, and Google. Further, instead of end-to-end encryption as they respresented. The difference between the two encryption protocols lies in Zoom’s access to the video and audio content of our meetings; the former allows such access, whereas the latter does not. Though Zoom denied these allegations, it through app updates and the “official” use of end-to-end encryption.

Access to our Zoom meetings may not present immediate concerns for our weekly virtual wine nights, but calls hosting confidential business and lawyer-client meetings may warrant alternative measures.

What about Other Platforms?

Microsoft Teams, another staple, has issues as well. While the platform introduced , such as end-to-end encryption, this past year, its user activity reports prompted many questions. In addition to , Microsoft Teams records your online activity—the . Perhaps more concerning is that your employer can as well.

Dangers of Unprotected Information

Other than the moral concern that our information is being collected, stored, and shared without our consent, our information may also be sold as commodities. Harvard Business School scholar Shoshana Zuboff calls this activity , where companies employ users’ internet browsing activities and data to create strategies that influence online consumer behaviour. Not only does this violate our privacy rights, but it also creates a bigger ethical dilemma within the economic market.

Why Now?

Zoom’s security changes were not proactive. In a sense, changes were made only after public backlash. One may question what else they are hiding or if they would have made such changes had this issue not been brought into the spotlight. Are there other data collection and usage activities we are not aware of?

The Pandemic Impact

Subtle or not, virtual platforms have always prompted privacy concerns. The difference now is that using these platforms is no longer an option—it is, in many cases, essential to earn a living, increasing human rights concerns. One may argue that employers are forcing employees to sacrifice their privacy rights as a condition to keep their jobs. Without these platforms, working from home can become quite inconvenient and inefficient, affecting their job performance and the company’s bottomline.

What Does the Future Hold?

Microsoft Teams provides a few options for users to opt out of providing some of their personal information. Virtual platforms continue to promise stronger security measures. However, is it even possible to assure complete protection of our privacy? Or must we accept and adapt to this world where our information is scattered and controlled by unknown entities in exchange for these seemingly essential services, that we often pay for?

Most of the world seems to post-pandemic, which means our usage and reliance on these online platforms will only continue to grow. The pressure for companies to change will either come from legislation or consumers.�� Without any pressure or change, we may just be headed towards George Orwell’s vision of 1984…in 2021.

Now, are you sure you want to unmute?

The post Hey—You’re Muted! Privacy in the Zoom-Era appeared first on IPOsgoode.

At the beginning of 2020, when the team was first scheduled to compete, compulsory licensing seemed like a fun thought experiment and a great theoretical moot problem about balancing IP rights and public health. It quickly became an eerily relevant issue as the world rapidly shut down and essential medical items like masks, gloves, and ventilators became precious commodities. Doors stayed shut, Wi-Fi capacity limits got tested, and in the wake of the initial disbelief that the world was collectively at war with the most covert of enemies, there was little room to feel disappointment about the cancellation of the competition. As the months wore on, and a new normalcy crystallized, the team got word that the competition was back on, and that the 2020 competitors were invited to return. Two of the team members came back, and a third joined ranks in January of 2021.

The moot organizers pivoted to a Zoom format and accommodated its largest set of teams to date, with 32 schools battling for the title. The first day entailed a virtual welcome ceremony. Moments after the team’s alarm clocks screamed to life at 6:30 am, each member logged into Zoom, sleepy-eyed and afflicted with the most serious cases of bed head. As the organizer scrolled through the competing teams’ slides, it slowly became apparent that Osgoode had miscalculated. Slide after slide passed through the platform, with many a suit and rarely a smile. Then Osgoode’s slide came roaring in with a beaver, a moose, and what appeared to be a team member drinking maple syrup straight from the bottle. Whatever impression they made, the Ozzies quickly made it clear that they meant business.��

The preliminaries were also no laughing matter, as the competition was fierce. Thankfully, Osgoode was blessed with the platinum package for coaching and the preliminaries were passed through with a breeze. As the team advanced on, excitement in the Osgoode community rose. The team entered the final match, buttressed with support from all angles in the Oz community, the IP space, and from their collective friends and family. The online format uniquely allowed all supporters to watch their team in action, and we felt the love. While Osgoode ultimately lost out in the grand final, the opportunity to experience this competition was a big “W”.

To our 2020 team member, Julianna Felendzer, we hope we did you proud. Thanks for helping us secure the invite to the oral rounds!

To our coaches Jennifer Davidson, Stephen Selznick, Any Obando and Giuseppina D’Agostino, we are forever grateful for your dedication and your support, especially when it was just a “hair toss, check your nails” kind of day!

Co-written by Anna Morrish, Alex Dumais, and Karin Kazakevich, 2021 Oxford International Intellectual Property Law Moot Runners Up

The post A Year in the Life of Three Oxford Moot Finalists appeared first on IPOsgoode.

DRAMATIS PERSONAE: ����������������������

Justice R. Bitter, judge (J)

Sue N. Ewon, plaintiff (P)

Wigmore Cross, plaintiff’s counsel (PC)������������������������������������������������������������������������������������

Chick Fowler, defendant (D)

Ms Chiff Maker, defendant’s counsel (DC)

PARTIAL TRANSCRIPT OF CROSS-EXAMINATION OF PLAINTIFF SUE N. EWON:

DC: So, Ms Ewon, you say the defendant’s chicken-plucker infringes claim 1 of your patent?

P: Yes.

DC: Because it includes chicken-pluckers with a widget, and the defendant’s plucker has that widget?

P: Yes.

DC: Did you ever tell anyone that claim 1 doesn’t include chicken-pluckers with a widget?

PC: I object, what plaintiff thinks her claim means is irrelevant. That’s for the judge.

J: Yes, I think that’s right. Ms. Maker, I decide questions of law.

DC: All right. (To P:) When you applied for your Canadian patent, did your patent agent write to the examiner to say that pluckers with widgets were excluded?

P: I’ve no idea.

DC: I show you Exhibit K. You recognize that letter from your patent agent to the examiner?

P: Yes, she sent me a copy.

DC: You see where it says “Enclosed is a new claim 1 that corresponds substantially to the claim submitted in prosecution of the related United States patent application”?

P: Yes.

DC: You did have such an application in the United States, didn’t you?

PC (to J): With respect, Your Ladyship, I have no idea where this is all heading.

J: Nor do I, but I’ll cut Ms. Maker some slack for the moment.

DC: Thank you. (To P:) I repeat, you did have an application filed in the United States for the same invention as in this case, didn’t you?

J: Yes.

DC: Are you aware that the attorney handling your American application wrote to the American examiner, saying that a new claim 1 he was submitting would overcome the examiner’s objection that chicken-pluckers with widgets were known to the prior art?

PC (to J): I object most strenuously to that whole question. Even if my client personally wrote to the American examiner saying that, it is inadmissible here.

J: Why? Because it wasn’t said in Canada to a Canadian examiner?

PC: Yes.

J: Would it have been admissible had your client written the same thing to the Canadian examiner?

PC: I don’t believe anything said anywhere else than in a Canadian prosecution has anything to do with this case. May I draw Your Ladyship’s attention to the Court of Appeal’s reasons in CanMar at paragraph 70? The Court there said you should be “wary” about allowing anything other than Canadian prosecution history in. And then at paragraph 71, the Court went on to say you should “tread carefully” in admitting extrinsic evidence to interpret a patent claim. And once again in that paragraph, “Opening the door to allowing foreign patent prosecution history into the analysis might lead to overly contentious and expensive litigation.”

J: Well, I am treading carefully and warily, and I haven’t turned the door knob yet. Hasn’t this litigation been contentious and expensive enough anyway? Aren’t you making it more expensive and contentious by raising these sorts of objections? I can’t see why a statement that would be admissible and relevant if made in Gatineau becomes inadmissible and irrelevant if made in Alexandria. What happens in Virginia doesn’t have to stay in Virginia.

PC: With respect, it is not Your Ladyship’s role to question the wisdom of Parliament. Both Justice Manson and the Court of Appeal said very clearly that section 53.1 applies only to communications to the Canadian Patent Office.

J: I am not questioning Parliament’s wisdom, only the awkward statutory language used to translate it. Hasn’t one of my colleagues just decided that even Canadian history isn’t admissible if it’s the licensor rather than the patentee who sues, even where the patentee is a defendant (Allergan Inc v Sandoz Canada Inc, at [126])? Why couldn’t section 53.1 just have said that any prosecution history from wherever is admissible, but its weight is for the court? Is section 53.1 based on any other country’s legislation?

PC: Not that I know, Your Ladyship. It is homegrown, although I accept there may be a few weeds among the roses.

J: What I am saying, I guess, is much what Justice Manson said in CanMar. Here we have the extraordinary circumstance that the Canadian communication expressly refers to the corresponding US application and the clear inference is that the Canadian claim is being replaced precisely to overcome the actual or anticipated citation of the same prior art against the Canadian application.

PC: With respect, that is exactly the same situation as in CanMar, and the Court of Appeal explicitly overruled Justice Manson’s admission of the American file.

J: We have this anomaly then, haven’t we? If the Canadian patent had been granted unchanged and without reference to the US application, your client could have asked for it to be reissued with the changed claim under section 47 of the Patent Act because of an inadvertent mistake. Foreign prosecution history has long been admitted on a reissue application to show there was a mistake and that the reissued patent would be for the same invention. Why allow the foreign file to be admitted to show the reissue was justified, but exclude it to show what the claims now mean?

PC: If that was the position before section 53.1 took effect, then I submit that such foreign history can no longer be admitted in reissue.

J: What do you say, Ms. Maker?

DC: Section 53.1 states that it specifically applies to reissue and no intent to change current Patent Office practice appears. Nor is there any apparent attempt to overrule long-standing cases such as Northern Electric Co v Photo Sound Corp, , where the whole case depended on foreign prosecution history. If foreign history is admissible in reissue to determine the scope of the invention, as I submit it was before and is after s. 53.1, then I cannot see why it is inadmissible where an ordinary patent is involved.

J: Well, it’s a brave trial judge who says the Court of Appeal has decided something per incuriam and should not be followed.

DC: May I make one further point? The Court of Appeal in CanMar relied on a decision of the United States Federal Circuit Court of Appeals to say that the reference in the plaintiff’s letter to the Canadian examiner to “a related United States patent application” wasn’t specific enough to incorporate the corresponding US file. The point on how specific a cross-reference must be to allow another document to be read has not been decided by the US Supreme Court, and I would point out that the Federal Circuit Court of Appeals is a court with one of the highest reversal rates before the US Supreme Court, and especially so in patent cases.

What our Court of Appeal should have done was to apply the general law in Canada on when documents can be looked at together. Cases on the Statute of Frauds are the most obvious source. The Statute requires contracts, such as guarantees or sales of land, to be evidenced by a memorandum in writing, and ever since the 19th century, it has been held that two or more documents can form a single memorandum. Supreme Court of Canada authority going back a century says, and I quote, “parol evidence may be given to connect two documents together which do not expressly refer to each other, but which connection and reference is a matter of fair and reasonable inference:” Doran v McKinnon, , 53 SCR 609 at 611. I can say that is also the law in most Commonwealth countries and state courts of the United States. Not to put too fine a point on it, the US Federal Circuit has gone rogue by making up its own rule of incorporation and ignoring the general law of the majority of state courts.

I submit that in our case the reference to the US application is plain enough in the letter to the Canadian examiner. It is also distinguishable from CanMar in two respects. First, our letter refers to “the” US application, whereas the Canmar letter referred only to “a” related application. We are very specific. Second, the US application in CanMar was abandoned, whereas here the plaintiff’s application specifically claims priority from the corresponding US application which was granted. It is open to the Court to hold the US history admissible on either of these distinctions, since the Court of Appeal specifically refused to express any “firm view on the broader issue of whether foreign prosecution history can be considered under section 53.1.” I ask for Your Ladyship’s firm views now. ��

PC: I submit this case is covered exactly by the Court of Appeal in CanMar and the foreign history cannot be looked at.

D (intervening): You mean Sue can lie to a Canadian judge where she wouldn’t dare to an American one? [Scuffle breaks out.]

J: Ms. Maker, could you kindly restrain your client? [Order resumes.]

Thank you, counsel.

I propose to admit the statement in the US patent file into evidence. I shall not at this stage indicate what weight it deserves or what use I may make of it. This case is not covered by CanMar because the Canadian patent here relies for its priority on a stated US patent. The plaintiff cannot blow hot and cold by then dismissing the very patent from which it claims priority and on which it may well depend for validity in Canada.

The Court of Appeal thought it “a stretch” to incorporate a US patent file on language as general as that which points to “a” related United States application. There is no “stretch” at all here since, as defendant’s counsel submitted, the letter to the Canadian examiner points to “the” related US application, not merely “a” related one. I nevertheless must say that, at a time when we are all urged not to subject patents to “the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge” (Catnic Components Ltd v Hill & Smith Ltd, [1982] RPC 183, 243 (HL)), I would be reluctant to have to read the documents leading to the grant of a patent more meticulously than I would read the patent itself.

I am also not sure that incorporation is the mot juste for the ability to follow a signpost and explore the destination to which it points. There is no difficulty in identifying that destination off the face of the Canadian file. Canadian patent law is no Alsatia where the general law stops, nor is it one where the US Federal Circuit’s writ runs. To adapt L.P. Hartley’ s words in The Go-Between, patent law should not be a different country where they do things differently. Law under the Statute of Frauds lets two documents be read together where their “connection and reference is a matter of fair and reasonable inference:” Doran v McKinnon, , 53 S.C.R. 609, 611, which I note was recently applied to a series of emails in Druet v Girouard, at [34]. Canadian patent law should let patent files be cross-referenced that way too. The location of the second file should not matter, any more than it does under the Statute of Frauds. If a multimillion dollar guarantee or land contract can be interpreted and enforced by means of such a connection, so should a patent.

None of the parade of horribles trotted out by the Court of Appeal (CanMar at [71]) is present here. There is no translation problem with the US file, and the Court of Appeal specifically said at [72] that “one should not underplay the public interest in keeping those who have previously disclaimed elements from their patent from re-claiming them in future infringement cases.” I do not expect that the plaintiff will ask me to take such a course, which Locke J (now JA) in Pollard Banknote Ltd v BABN Technologies Corp, at [237] described as “breathtaking.”

I would only add in passing that, when the Court of Appeal comes to take a “firm view” on foreign prosecution history and section 53.1, it may well have to take account of the long-standing practice, sanctioned by consistent Supreme Court authority, of relying on evidence of such history to decide when the reissue of a defective or inoperative patent under section 47 of the Patent Act is warranted or valid.

Ruling accordingly

Prof David Vaver is a Professor of Intellectual Property Law at Osgoode Hall Law School and Emeritus Professor of Intellectual Property & Information Technology Law at University of Oxford. This is an abridged version of a Comment that will appear in the Intellectual Property Journal.

The post THE WONDERFUL WORLD OF PATENTS: “THEY DO THINGS DIFFERENTLY THERE” appeared first on IPOsgoode.

Isaac has already garnered attention from some big names, as he was featured on Thursday's YFile Newsletter! Read what they had to say about him . And for a quick demonstration of how Isaac works, check out the video below:

You can find more information about the event, as well as full bios about our panelists, on our page.

Registration is still open until 11:30 am, so click to reserve your spot. In case you are not registered, or having some trouble with the Zoom link, the event will also be broadcast live on and will be available for viewing after the event ends.

We look forward to seeing you at 12:30 and hope you enjoy the show!

��

The post Our IP Innovation ChatBot Launch Event is TODAY! Are You Ready? appeared first on IPOsgoode.

Editors at the , and have attempted to address some of these issues by publishing articles delineating ways to avoid “Zoom Fatigue” and other negative consequences. Colleen Flaherty of however questions its overall sustainability. Quoting Phil Hill, a partner at ed-tech consultancy, “the limitations of synchronous video are equity and access” and that no number of “guides” are going to help students who can’t afford laptops, internet, and quiet learning spaces during scheduled class times.

The article goes on to conclude that education institutions will need to focus their efforts on developing asynchronous teaching methods – methods in which students learn via videos, readings and other [offline] media – to better address issues relating to access and equity. Yet, synchronous formats have received the bulk of attention. Institutions have moved in droves to synchronous learning environments, leveraging online-video software that had existed pre-COVID such as and And now other software companies, such as and , are popping up to ostensibly offer a more curated synchronous experience.

Asynchronous environments, on the other hand, have not received much attention. This may be due to educators merely having to replicate their existing lectures online with synchronous formats, whereas asynchronous environments require educators to source high-quality offline material that matches existing curricula, where it does not exist. This seems to be where the asynchronous classroom breaks down – the lack of high-quality asynchronous content for educators to leverage. The content-platforms that educators do have at their disposal, like and , have inherent drawbacks such as a lack of curricula alignment and poor quality assurance, pre-empting any possibility of institutionalized adoption.

There are efforts being made, most notably by , to develop content for asynchronous learning environments. As textbooks are the de facto learning material in education curricula, and as publishers typically and ensure all moral rights by the original author are waived, they are ostensibly the best suited to create such works (e.g. video explanations, audio-books, note abbreviations, etc.) However, textbook publishers deriving videos from their original titles is rather analogous to music publishers deriving remixes from their original tracks. The possibility exists, and they may retain the necessary copyright to do so; however, . The publisher has no monetary impetus to engage in the (re)creation of other works, especially if it threatens the sales of the original track; the same could be said for textbook publishers and book sales.��

There does however exist an impetus for other creators to create such works. Over the years, the music industry has evolved to reflect this need by providing artists the means to acquire licences to create such derivative works.�� In the US, for artists to cover songs can be purchased online with notice to the publisher. In Canada, the equivalent is accomplished through the collective, responsible for issuing mechanical licences to musical derivationists. For music sampling subject to copyright, which includes the rights to use the voice of artists, private entities such as are attempting to pre-clear tracks by negotiating advances and royalty rights on behalf of the final user.

Notwithstanding minor differences in definitions between literary and musical works in the , the concept of reproduction licensing is the same. Just as mechanical structure and lyrical composition of musical works are protected, so too are the paragraph structures and sentences in literary textbooks. The only difference is that the music industry has had decades to mature into what has emerged as a comprehensive system of collectives, private entities, and compulsory-licence regimes able to extend licences for the many layers of rights contained in musical compositions. While the education technology industry, still in its infancy, does not have such regimes, the development of such may help spur the creation of high-quality asynchronous content and thus the adoption of its educational method, which may elevate our education system to a point where we at least don’t complain about it (as much).

Written by Joseph Simile, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

��

The post Zoom Boom or Doom? The Fatigue of Synchronous Learning Saved by the Sweet Melody of Copyright appeared first on IPOsgoode.

The platform's are concerning since Zoom shares the personal data of the users with third parties for business purposes, whatever that may be. indicated that instant messages or videos could be used to target advertising campaigns or develop a facial recognition algorithm. This may be especially threatening for individuals who use Zoom to communicate extremely , such as that shared between corporate management or in therapy sessions. also discouraged the use of Zoom in cases where strong confidentiality is required, including "governments worried about espionage; businesses concerned about cybercrime and industrial espionage; healthcare providers handling sensitive patient information; and activists, lawyers and journalists working on sensitive topics". The also had a feature that exposed individual's personal information to others, as well as not having appropriate end-to-end encryption on its data, meaning Zoom itself has access to the data that flows between users. Due to these serious concerns, multiple organizations such as , and the , have banned their employees from using Zoom.

Moreover, Zoom has been hit by several lawsuits, which damaged the company's reputation. Subsequently, consumers and investors started losing trust, which resulted in the company's since the end of March. Zoom is facing a lawsuit by an investor who claimed that the company had regulations by failing to disclose known problems with its software encryption and privacy, leading to damaged share value. Zoom faces additional class action court filing in the US after it was found out that were able to snoop video calls under certain circumstances.

Due to all the ongoing and upcoming litigation and public outcry, the CEO of Zoom, Eric Yuan, has publicly addressed Zoom's privacy and security issues. has stated, "you know, lesson learned" and promised to double down on privacy and security.  Not only did Zoom institute a 90-day plan aimed at improving the areas of concern were brought forward, but the company also established a where Facebook's former chief security officer Alex Stamos was hired to be a central consultant. The company has also improved its previously outdated standard to AES 256-bit TLS to provide better cybersecurity protection to its users. However, whether these privacy and cybersecurity improvements would be sufficient to comply with the privacy legislation, such as the (PIPEDA) or the (GDPR) is another story.

An expert has stated that Zoom privacy policies would get a C- for its standards according to the European GDPR standards. Moreover, the Canadian requires meaningful consent to collect user disclosed information according to the identified purposes; and must be appropriately safeguarded. Zoom may not sufficiently meet these standards, as the users are required to passively accept the collection of their personal data if they are required to use the program for an interview, for example. The terms for identified purposes for data collection are vague in Zoom’s privacy policies. The drastic effect of the privacy concerns demonstrates the importance of cybersecurity measures, not only for commercial success, but also for legal compliance and the public's trust in the company.

Written by Elif Babaoglu, who is a contributing IPilogue Editor and the Co-Director of Events of the Osgoode Privacy Law Society.

The post Is Zoom Doomed? appeared first on IPOsgoode.