Archive for October, 2012

Privacy: “Get Over It”?

Not so fast. In 1999, the CEO of Sun Microsystems famously said: “You have zero privacy anyway. Get over it.”  The Supreme Court of Canada apparently disagrees.

The Supreme Court of Canada (SCC) released their decision in R. v. Cole last week. While this does stray from our usual review of intellectual property law, it is an important decision impacting the overlapping areas of privacy and technology. The SCC has decided that it’s reasonable for Canadians to expect privacy in the information contained on computers used for personal purposes “at least where personal use is permitted or reasonably expected.” In this analysis, ownership of the computer or laptop (or tablet, smartphone, etc.) factors into the decision of what’s reasonable, but is not conclusive. Similarly, an employer’s policies may be taken into consideration, but won’t be determinative. In other words, regardless of who owns the hardware or what the policy says, courts will consider “the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.”

Even where the laptop is owned by the employer and the workplace policy informs employees that their use will be monitored – these factors may result in a lower expectation of privacy but the expectation of privacy, according to the SCC, does not disappear as easily as you might think.

Lessons for business? Employers must tread carefully and get advice when monitoring or accessing the personal information of employees on workplace computers, laptops, tablets, smartphones and virtual systems.

Related Reading: Our earlier post: Privacy in a workplace laptop, reviewing the Ontario Court of Appeal decision in R. v. Cole, 2011 ONCA 218.

Calgary – 07:00 MDT

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“Great Fun” : Enforceability of Online Terms

“Great Fun” is a service offered by a company called Trilegiant. Trilegiant offers certain discounts to Great Fun members based on a monthly membership fee. Problem is, some members didn’t realize they were members until they saw the membership fee on their credit card statement. In Schnabel v. Trilegiant Corporation & Affinion, Inc. , Court of Appeals, 2nd Circuit (September 2012), the court considered whether terms could be considered enforceable if the terms were sent by email after the formation of the online contract.

In this case, there were online terms in the sign-up page, but for a variety of reasons, Trilegiant couldn’t rely on these terms, and was obliged to argue that the emailed terms were binding. Trilegiant asserted that the members assented to an arbitration clause by signing up, and receiving the emailed terms at a later date, and then failing to cancel their membership during the “free trial period”. The Second Ciruit Court of Appeals took a dim view of this approach. In the U.S., a consumer may receive “actual notice” of the online terms, or “inquiry notice”. “Inquiry notice” occurs when the consumer has actual notice of circumstances where a prudent person would be on guard to the existence of terms. It’s a stretch, but can still result in enforceable terms. The court concluded that neither “actual notice” nor “inquiry notice” were provided by means of the emailed terms. The court concluded:

“We do not think that an unsolicited email from an online consumer business puts recipients on inquiry notice of the terms enclosed in that email and those terms’ relationship to a service in which the recipients had already enrolled, and that a failure to act affirmatively to cancel the membership will, alone, constitute assent.”

Lessons for business? Get advice on your online terms and sign-up process for any online contracting: including cloud-computing contracts, software-as-a-service, online products sales, license agreements and terms-of-use.

Related Reading:

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Intellectual Property Injunctions as a Strategic Tool

The Medium is a publication discussing current intellectual property and technology issues. This edition includes: Apple vs. Samsung: Intellectual Property Injunctions as a Strategic Tool, as well as “New Copyright Act (The Top 10 List)“.

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An Update on gTLDs

You may recall the announcement that new domains are coming – everything from .AAA to .ZULU. These proposed domains  are inching their way through the ICANN process. We have been monitoring the implementation of new gTLDs and note that the period for filing formal objections against a newly applied-for gTLD began on June 13, 2012 and is scheduled to run until January 2013. If you are interested in filing an objection against a proposed new top-level domain, you should contact trade-mark counsel right away.

Comments are also being solicited on the draft version of the Trademark Clearinghouse Requirements.

See: Reveal Day for New Top-Level-Domains

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Self-Replicating Technologies (Patents in the Field, Part 2)

In our earlier post – Patents in the Field (Part 1) – we reviewed the topic of patent exhaustion in a patent infringement case in which Monsanto sued a farmer who was collecting and replanting seed that contained Monsanto’s patented genetically-modified genes.

In Bowman v. Monsanto Company the US Supreme Court has decided to hear the appeal of the 2011 decision. In the earlier decision of the Federal Circuit Court of Appeals, Monsanto sued, claiming the second crop and the saved seeds infringed on its patent, because its patented technology existed somewhere in that crop. The farmer defended by claiming the defence of “patent exhaustion” – that any patent rights in the second crop of seeds were exhausted, and further use or sale of those seeds would not infringe Monsanto’s patent. The Federal Circuit appeals court rejected this defence, reasoning that by planting the commodity seeds containing the “Roundup Ready” patented technology, the farmer created an infringing article (i.e. the plant grown from the next generation of seeds). This replication of the patented article constituted an infringement, which was not excused by the “patent exhaustion” doctrine.

The US Supreme Court case of Bowman v. Monsanto will be closely watched and the final decision could be a milestone case in the area of self-replicating technologies and intellectual property in the agricultural industry.

Related Reading:

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