Email Communications As Contracts

Can an exchange of email form a contract? To create an enforceable contract, the parties have to intend to be bound by their agreement at the moment the contract is formed. This can happen in different ways, including via email.  In the recent decision in  Basis Technology Corporation v., Inc. 71 Mass. App. Ct. 29, the court ruled that email communications between the parties’ lawyers constituted a sufficiently complete and unambiguous agreement, and that both parties intended to be bound by that communication of terms.

The court will not look at whether the parties think they have agreed, but what an “objective reasonable bystander would conclude based on all of the material facts.”  If that objective analysis shows that the parties intended to form a contract and the essential terms of that contract can be determined with a reasonable degree of certainty, then the contract will be enforceable.

In Leoppky v. Meston, 2008 ABQB 45 (CanLII), a recent Alberta case, the court concluded that there was an agreement between the parties, formed by a string of emails.

In another interesting twist to this concept, many companies (including internet service providers) reserve the right to amend their “terms of service” by sending the amended terms to customers via email. Last month, AT&T in the U.S. sent out an email notice to its customers, advising of amendments to the standard terms of service.  However, for some customers, AT&T’s own filter identified the email as spam and diverted it into the junk folder.  Depending on the terms, the company might have trouble enforceing the change if challenged in court.

Related Reading: E-Commerce Update

Calgary – 11:45 MST


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First Conviction Under Anti-Camcording Law

Alberta has produced what appears to be Canada’s first anti-camcording conviction.

Revisions to the criminal code, which target movie piracy in theatres, were used to obtain a conviction against a Calgary man who was banned from movie theatres for a year and fined $1,500. The convicted man was also prohibited from purchasing or owning video recording equipment during his probation period. There does not appear to be any evidence that he was in the business of distributing or uploading pirated videos. The Canadian Motion Picture Distributors Association was apparently pressing for jail time.

Calgary – 20:45 MST

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SCC Decision on Selection Patents

In the battles between generic and brand-name pharmaceutical companies, this decision can be considered a major clarification of the law.

Last week the Supreme Court of Canada (SCC) released its decision in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61. This patent litigation case centres around so-called “selection patents”. Selection patents claim “an advantage for a compound within a previously disclosed class of compounds which has not been disclosed in the prior patent”, as described by the court. Unlike originating or genus patents, which cover an originating invention involving a new reaction or a new compound, selection patents build on previously disclosed classes of compounds but identify a new use or benefit of the compound undisclosed in the originating patent. In this particular circumstance, Apotex (the generic manufacturer) claimed that one of Sanofi’s selection patents was invalid because it was covered within one of Sanofi’s earlier originating patents. The court disagreed with Apotex and upheld Sanofi’s selection patent. The win is significant for Sanofi since it covers the drug company’s second-best-selling drug, and the patent does not expire until 2012, giving the company 4 more years of monopoly over generic manufacturers.

As for the complaint from generics that big pharma is engaging in “evergreening” to continue their monopolies long past the time intended by the Patent Act, the court stated: “Strategies that attempt to extend the time limit of exclusivity of a patent may be contrary to the objectives of the Patent Act, depending on the circumstances, but a generalized concern about evergreening is not a justification for an attack on the doctrine of selection patents. A selection patent may be sought by a party other than the inventor or owner of the original genus patent so that evergreening does not arise. In addition, selection patents encourage improvements over the subject matter of the original genus patent because that selection does something better than or different from what was claimed in the genus patent.”
Related Reading: Pharma Patent Decision Released

Calgary – 17:45 MST

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The Obama Trade-mark Surge

It was announced last night that Barack Obama will become the next US President. Entrepreneurial Americans across the nation are taking the opportunity to file trade-mark applications inspired by the President-elect. Here are a few of the more interesting ones filed in the USPTO in the last year:

  • BROCCOLI OBAMA – filed for “A vegetable recipe”
  • OBAMALLAMA – for plush and stuffed toys and political memorabilia
  • WHO’S YO’BAMA NOW? – for athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms; Button-front aloha shirts
  • THE REAL OBAMA GIRL  – for audio and video recordings; digital music downloadable from the Internet
  • OBAMA BABY – for customized imprinting of company names and logos on promotional merchandise, apparel and corporate gifts
  • OBAMANOS! – for imprinting messages on wearing apparel, accessories and mugs
  • IRISH FOR O’BAMA – Bumper stickers
  • OBAMANATION – for yoga/exercise pants, loungewear and scarves
  • O.B.A.M.A. OUR BEST ANSWER FOR MANAGING AMERICA – for T-Shirts, Sweaters, and Hats.

And my personal favourite:

  • BEARAK OBAMA – for teddy bears

Now if only Canadian politicians inspired such branding activity.

Calgary – 11:20 MST 

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