The Power of Perspectives

The Canadian Bar Association

Brian John Capogrosso


CETA and pharma: A small (but encouraging) step for Canada

By Brian John Capogrosso August 22, 2014 22 August 2014

By now, most people who have been following the discussions/negotiations between Canada and the European Union (EU) with respect to putting into place a trade agreement are aware that Canada and the EU have come to an agreement on the text of the trade agreement (10 months after they came to an “agreement in principle”) which will now be subject to legal review.  The Comprehensive Economic and Trade Agreement (otherwise known as CETA) has been the subject of a lot of discussion with respect to its impacts on current Canadian legislation and the manner  in which it was negotiated by the current government (i.e. openness, transparency, etc.).

One section of CETA has captured my interest more so than others: the section on intellectual property and, more particularly, the subsection addressing pharmaceutical patents.  Canada is traditionally and internationally considered to be a less-than-hospitable jurisdiction for pharmaceutical patentees and intellectual property rights generally.  By agreeing to the current draft of CETA, Canada has effectively agreed inter alia to (lightly) bolster pharmaceutical patent rights.  This is surprising to say the least (and both welcome and long over-due).

Read More

Soundcloud's copyright woes

By Brian John Capogrosso July 22, 2014 22 July 2014

Soundcloud is a popular website/app amongst internet music lovers and artists worldwide, providing a platform for the uploading of music (and other forms of art) by artists and users alike to be shared with the Soundcloud community.  Developed in 2008, Soundcloud is recognized as an effective promotional tool, often compared to other similar websites/apps such as MySpace and YouTube.

Unfortunately, it also shares other less desirable similarities with such user driven media upload sites: an elevated potential for copyright infringement of third party rights.

Read More

Trade-mark changes buried in the budget bill

By Brian John Capogrosso May 7, 2014 7 May 2014

A couple of months ago, I, and other IP law related bloggers, spoke of the tabling of 5 international treaties in Parliament.  Three of those tabled treaties, namely the Madrid, Nice and Singapore Treaties, related to trade-marks. The implementation of the three international trade-mark treaties would have required changes to current Canadian legislation governing trade-marks.  And we all waited with baited breath.

Wait no more friends; we have our answer with the recent introduction of the federal government’s budget implementation bill, C-31

What does Bill C-31 have to do with trade-marks?  Quite a bit as it turns out.  Many have criticized Bill C-31 as being an omnibus bill impacting a wide scope of laws, and not just legislation related to the budget (to be fair, the title of the Bill does include the vague catch-all “and other measures”).

“Omnibus” talk aside and focusing on the trade-mark legislation related portions of Bill C-31, many surprising introductions have been buried deep in the more than 300 page document.  The most surprising is the elimination of the “use” requirement.

Read More

The EMA’s push to proactively disclose clinical trial data

By Brian John Capogrosso March 21, 2014 21 March 2014

According to its website, the European Medicines Agency (EMA) reconvened to discuss implementing its controversial policy on the proactive publication and access to clinical-trial data at a Management Board.  One focus of the discussions is the introduction of measures designed to address the risk of unfair commercial use of the clinical-trial data.

The EMA is primarily tasked with providing the best possible scientific opinion to European Union and member states on any question relating to the evaluation of the quality, safety and efficacy of medicinal products.  A company or drug sponsor seeking marketing authorization in the European Union will submit an application, which includes clinical trial data, to the EMA or national health agencies for review.  The European Commission (EC) or the concerned member states, will decide whether to issue marketing authorization to the drug sponsor for the drug product in question.

Read More

Ratified at last?

By Brian John Capogrosso February 18, 2014 18 February 2014

Every four years in February, the international community comes together for the Winter Olympics (Go Canada Go!).  This year, Canadian athletes and athletes from around the globe have made their way to Sochi, Russia, for two weeks of competition.

Riding the wave that is the international spirit brought on by the Olympics, we’ll explore recent developments in Canadian intellectual property (IP) law that have an international twist. 

On January 27, 2014, five international IP treaties were tabled in the House of Commons:

  1. Patent Law Treaty, done at Geneva on 1 June 2000;
  2. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, adopted at Nice on 15 June 1957, as revised at Stockholm on 14 July 1967, and at Geneva on 13 May 1977, and amended on 28 September 1979;
  3. Singapore Treaty on the Law of Trademarks, adopted at Singapore on 27 March 2006;
  4. Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on 2 July 1999; and
  5. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, as amended on 3 October 2006 and on 12 November 2007.

IP law is jurisdictional (i.e. each state has its own IP laws). However, globalization has resulted in a need to protect valuable IP rights internationally and, as a consequence, the simplification and standardization of the processes to register these rights.  The adoption of these tabled treaties would be a step towards harmonizing Canadian patent law, trademark law and industrial design law with the laws of the other contracting states.

Read more after the jump.

Read More