In two earlier posts (see here and here), we reviewed the Alberta Court of Appeal’s guidelines to assist with basic contract interpretation (in Bhasin v. Hrynew). In this post we wrap up our primer on the Court’s guidelines. According to the Court:

• Mental suffering is not compensated in contracts law (the only caveat is whether “harsh modes of termination” might trigger damages in the case of an employment contract).

• What if one of the parties is at a significant disadvantage in bargaining power? Where two parties are negotiating and there is some inequality in “bargaining power, need, or knowledge”, that alone is not enough to justify an amendment to the terms of a contract. However, the court might be willing to step in and amend the terms of a contract in the case of “actual unconscionability”. What does “unconscionable” mean? It depends…. Here’s an example: In the recent case of Maloney v. Dockside Marine Centre Ltd., 2013 BCSC 395, an exclusion clause in a standard purchase-and-sale contract was consider by the court to be “unconscionable” because there was an inequality in the position of the parties, with a sophisticated and experienced vendor versus an unsophisticated purchaser.

• What if you are negotiating and the other side makes a promise that never makes it into the agreement? There is a concept in contract law called “parol evidence”. This refers to evidence of verbal or extraneous negotiations or agreements between the parties, that might explain, interpret or alter the written terms of a contract. Think of all the discussions and email exchanges that never appear in the final written document … but they might help explain or shed light on certain provisions of the written agreement. The Court has indicated that such evidence should be used very conservatively. An “entire agreement” clause can validly exclude this type of evidence of previous negotiations or promises (assuming there is no actual fraud). In other words, do not rely on this type of evidence to explain the written agreement. If you want a certain term or promise in the agreement, then it should appear in writing.

• “Courts should be especially wary of altering or interpreting creatively formal contracts carefully negotiated and written, with legal advice”; and finally

• “Courts should not attempt after the fact to rewrite a contract to accord with what the court now thinks, or one party now believes, is more just or more businesslike, especially in the full light of hindsight.”

Calgary – 07:00 MDT

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As mentioned in Part 1, the Alberta Court of Appeal (in Bhasin v. Hrynew) has provided some helpful guidelines to assist with basic contract interpretation.

If you deal with contracts in your job, then here are some tips to see how the courts will interpret your agreements.

From time to time a question comes up about what terms are “implied” in the written agreement. Yes, the terms appear clear to one side, but the other side argues that certain provisions should be included by implication, even though those terms are not specifically written in the contract. What is the Court’s view on this? To paraphrase from the judgement:

• Courts are generally against implying terms into a written agreement.
• Courts can imply terms in contracts only when the new term is: (i) so obvious that it was not even thought necessary to mention, or (ii) truly necessary to make the contract work at all. This is not a question of making the contact “merely reasonable” or “fair” for both sides, but a question of what is completely obvious or absolutely essential for the contract to make sense.
• Merely foreseeing that something might happen is not enough to justify adding implied terms; both parties “must have intended the term” to be included.
• A term cannot be implied in a contract which would contradict an express term of that contract. In other words, an implied term cannot be added where it would go against the clear written provisions that the parties agreed to.

More to come.

Calgary – 07:00 MDT

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The criminal defence lawyers have their TV shows and movies. What about those humble lawyers who draft online agreements and terms of use all day long? It’s not every day that this kind of legal fine print gets time on the silver screen. Check out this documentary Terms and Conditions May Apply.

Playing next weekend at the Vancouver International Film Festival and Hot Docs Canadian International Documentary Festival.

Calgary – 07:00 MDT

Intellectual property (IP) contracts in Alberta are interpreted just as any contract would be. The same basic rules of interpretation apply, whether it is an IP assignment or transfer, a software license, a complex techology asset acquisition, the hiring of a technology employee or consultant, a non-disclosure agreement or any commercial agreement with an IP element.

The Alberta Court of Appeal in Bhasin v. Hrynew, 2013 ABCA 98, has provided some helpful guidelines to assist with basic contract interpretation. If you deal with contracts in your job, then here are some tips to see how the courts will interpret your agreements:

• Think there is a duty to perform contractual obligations in “good faith”? Guess again. “There is no duty to perform most contracts in good faith.” The court cited an Ontario decision (Transamerica Life Canada v ING Canada 2003 CanLII 9923 (ON CA) (para 51)) and two Alberta Court of Appeal cases (Mesa Operating Partnership v Amoco Canada Resources (1994) 149 AR 187 (CA) and Klewchuk v Switzer, 2003 ABCA 187 (CanLII)). The courts in these cases found no general duty of “good faith”, and they involved very different types of contract.
• What about in employment agreements, where (arguably) there is an imbalance of power in favour of the employer? The court said there is a relatively narrow duty of good faith in employment contracts: Employers must not announce or implement termination in a “harsh or demeaning way”. This applies to the method of termination, not the reasons for the termination. Other than that, there is no general duty of good faith in employment contracts. The Court cited two cases which state that employment contracts are not generally contracts of good faith in all respects. (Wallace v United Grain Growers 1997 CanLII 332 (SCC),  and Keays v Honda Canada, 2008 SCC 39 (CanLII).

More to come.

Calgary – 07:00

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Consider this: A service organization we’ll call CloudCo collects and compiles personal information from its corporate customer. The individual whose personal information is being collected has a relationship directly with the corporate customer, but not with CloudCo. The personal information has been shared with CloudCo without the individual’s knowledge or consent. Sound familiar?

Many cloud service providers host personal information without any direct relationship with the individual. Maybe they rely on assurances from their own customer. Or they may simply collect personal information without thinking through the privacy implications. 

This recent decision of the Information & Privacy Commissioner of Alberta (Professional Drivers Bureau of Canada Inc. Case File Number P1884) deals with the collection of personal information of truck drivers by a private service company, called the “Professional Drivers Bureau”. This company collected personal information about drivers from trucking companies, created a database of information, and then offered a search service, by which trucking companies paid a fee for a report on the driver. In that report, the personal information about the driver was disclosed to the trucking company. The personal information was gleaned and compiled into a database over a long period of time, and it became clear during the Commissioner’s investigation that the individuals never consented to this collection, use and disclosure. The Commissioner ultimately decided that the “Professional Drivers Bureau” was in breach of Alberta privacy laws because it never obtained consent directly from the individual truck drivers.

What can other service companies – including cloud service providers – take away from this case?

• Cloud service providers should consider if they are “collecting” any personal information themselves, or merely providing a service which allows their customer to store information in the cloud. When a service provider collects personal information, it must obtain consent. In this case, the service provider did not provide any notice to the individual of its collection of her personal information, did not indicate its purposes, did not provide the name of someone who could answer her questions. It apparently did not inform the trucking companies about its purposes in collecting the personal information. All of this was in contravention of privacy laws.
• If a service provider is merely providing space on a server, the terms of service should address privacy issues, and make it clear that no personal information is collected, used or disclosed by the cloud provider. 
• Termination issues should also be addressed in the agreement. What happens to that data when the service relationship ends?
• Consider the position of the trucking company: in this case, the trucking company shared personal information about individuals with the “Bureau”. When personal information is disclosed in such a way, the trucking company should be asking: Was this disclosure authorized by the individual? What is the purpose of the disclosure? What contractual restrictions are placed on the recipient, to ensure that the personal information is used in accordance with the consent from the individual. In the cloud context, this means contractual terms that directly address the privacy issues.
• Get privacy advice when entering into cloud-based service agreements.

Calgary – 11:00 MDT

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License agreements often contain indemnities. An indemnity is a contractual obligation to step in and reimburse some financial obligation such as a liability, loss, or damage. In essence, the party giving the indemnity will make the injured party “whole” by recompensing losses and expenses.

The court in Coastal Contacts Inc. v. Elastic Path Software Inc., 2013 BCSC 133 reviewed the meaning and scope of an indemnity for intellectual property infringement, which is a common clause in many intellectual property (IP) license agreements. This is what’s known as an IP indemnity clause. What obligations does a software vendor take on, when they give an IP indemnity? For the full article, click here: Software Licenses and Indemnities: What Obligations Are You Taking On?

Calgary – 11:00

Not an IP story, dear readers, but worth noting: my firm has established the Field Law Community Fund to give back to the communities in which we work. Field Law, already supports charitable groups and organizations across Alberta and the North. The Field Law Community Fund Program has just been launched in addition to the firm’s current community involvement. The program empowers individuals, organizations, charities and community groups to access funding to bring their ambitious, creative community initiatives to life, such as initiatives focussed on education, healthcare, at-risk youth, homelessness, women’s organizations, sports, community and arts and culture. Check it out and apply!

Calgary – 07:00 MDT

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The protection of IP rights is a competitive tool in the global economy. A recent report from authored by Dennis Blair, former director of national intelligence in the U.S. and Jon Huntsman Jr. former governor of Utah and U.S. ambassador to China (and probably the most decent of the candidates running for the GOP last year) discuss this in their recent article in the Washington Post. They both work for the Commission on the Theft of American Intellectual Property (The IP Commission).

On Wednesday, the IP Commission released its report: The Report of the Commission on the Theft of American Intellectual Property (PDF). Makes for interesting reading for Canadians.

The Americans have the Economic Espionage Act, the Foreign Economic Espionage Penalty Enhancement Act and the Theft of Trade Secrets Clarification Act.

Is it time for Canadian legislation on the protection of trade secrets?

Calgary – 07:00 MDT

 

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When a user dies, who owns the contents of that user’s account?

In Ajemian v. Yahoo Inc.  (May 7, 2013), a Massachusetts court considered this question. Two brothers, who administered their brother John’s estate, brought a lawsuit against Yahoo for access to email messages of their deceased brother, and a declaration that the email account was property of John’s estate. The court considered the Yahoo Terms of Service, which included this clause: “You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”

The court looked at the central question of whether these terms – in particular, this “No Right of Survivorship and Non-Transferability” clause described above – was reasonably communicated to the user. The terms were amended before the time of death but the evidence was unclear on whether the deceased user had assented to this particular amendment. Because of the weak evidence on this point, the court decided that Yahoo could not rely on the forum selection clause which would have deflected the case to California.

The court took the view that the deceased user was a Massachusetts resident and courts in that state had a strong interest in the outcome of the case as it related to the assets of a deceased resident, as opposed to the nature of Yahoo’s services. The ultimate decision was remanded to the lower court, but we can take away a few important lessons:

1. The method of implementing Terms of Use and (just as important) amendments to those terms should be carefully reviewed by any Canadian company conducting business online. This includes everything from an email service like Yahoo, to cloud-computing service providers, online retailers, ebook sellers and software vendors.
2. Corporate accounts may not impacted by the death of a user, but anyone making consumer sales should review their online terms to address survivorship issues. And there are many cases where even a “corporate” user is signing up as an individual, without any clarity on what happens to that account as an “asset” of the business after death.

Get advice from our licensing and internet law experts in this complex area.

Related Reading: Is There Life After Death for Your Digital Assets?

Calgary – 07:00 MDT

A license can be granted without any written agreement. It happens more often than you might think. For example, a license by verbal agreement and a “course of conduct” was granted by one party in the case of  Planification-Organisation-Publications Systèmes (POPS) Ltée and Elizabeth Posada v. 9054-8181 Québec Inc., 2013 FC 427. In that case, the lack of a written agreement was irrelevant. The court found that there was an “implied” license. The next question was whether that license could be revoked or terminated? The software owner asserted it was entitled to revoke the licence that it had previously granted, because that licence had been granted for no consideration (or “à titre gracieux” – sounds better in French).

The court disagreed. It’s true that a license granted for no value or no consideration can be revoked unilaterally. The B.C. Court of Appeal came to this conclusion in Katz (c.o.b. Michael Katz Associates) v. Cytrynbaum, [1983] B.C.J. No. 2421 (C.A.), where an architect revoked consent to the transfer of copyright where it was given without any consideration. However, in the Planification decision, the court found significant value had been transferred over many years by the licensee, though it was never documented in writing as “consideration” for the grant of a license.  This came in the form of “conceptual contributions” to the software, software testing, compensation for developers, contributions of macros and other inputs for the software.

The lessons for business?

• Be aware that a software license can be granted verbally or through a course of dealing between the licensor and licensee. This results in an “implied” software license.
• Terminating or revoking such a license may be possible if the grant is gratuitous and there is a complete absence of any value flowing back to the licensor. However, consideration can also be implied. In this case, it was pieced together from various sources to make up valid consideration for the grant of the license.
• Any “free” licenses – including licenses between joint-venture partners, or licenses for beta or pre-release versions of software – should be handled carefully to avoid these pitfalls.

Calgary -07:00 MDT

Self-replicating technologies present intellectual property law with some unique challenges.

In the case of Bowman v. Monsanto Company (May 13, 2013), the US Supreme Court has weighed into this thorny field, and on Monday it delivered a unanimous judgment upholding the rights in Monsanto’s patented soybeans. (See our earlier post: Self-Replicating Technologies (Patents in the Field, Part 2).)

Monsanto sells its patented seeds under a license agreement. Farmers are permitted to plant the beans in one, and only one, growing season. Collection and replanting is prohibited under the terms of the license. Bowman bought seeds from a local grain elevantor, planted, harvested, collected and replanted those seeds in successive years. In this way, he was able to take advantage of the “Round-Up Ready” qualities of the genetically modified beans, without paying the usual fee that would be owed to Monsanto as the patent owner. In the court’s view, this deprived Monsanto of the reward that patent law provides for the sale of each patented article. The court was clear that “Patent exhaustion provides no haven for that conduct.”

According to the court: “…we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way,the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops. …Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium. He purchased beans from a grain elevator anticipating that many would be Roundup Ready, applied a glyphosate-based herbicide in a way that culled any plants without the patented trait, and saved beans from the rest for the next season.”

The US Supreme Court sided with Monsanto and upheld the Federal Circuit Court of Appeals decision.

Calgary – 07:00 MDT

There was considerable interest in our earlier post (Trade-mark Oppositions: When “Close” becomes “Too Close”) which reviewed the competing marks POMPURE vs. POM WONDERFUL for beverages, and the marks CAMILION vs. CAMÉLÉON & Design, both for software.

In another recent case Reynolds Presto Products Inc. v. P.R.S. Mediterranean Ltd., 2013 FCA 119, the Federal Court of Appeal reviewed the competing marks GEOWEB and NEOWEB, both for “cellular confinement systems”. The owner of the GEOWEB mark sought an order to strike out NEOWEB on the basis of confusion. At trial, the judge sided with the owner of the NEOWEB mark. The owners of GEOWEB appealed.

The Trade-marks Act tells us that in determining whether trade-marks are confusing, the court should consider “all the surrounding circumstances” including:

• the distinctiveness of the trade-marks and the extent to which they have become known;
• the length of time the marks have been in use;
• the type of products, services or business in question;
• the “nature of the trade” which looks at the marketplace, sales and distribution channels; and
• the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them.

In this case, the appeal court overturned the lower court decision. Proper emphasis should have been placed on the fact that both companies were direct competitors, selling the same products into the same market. The test to be applied is “a matter of first impression in the mind of a casual consumer somewhat in a hurry who sees the [mark], at a time when he or she has no more than an imperfect recollection of the [prior] trade-marks, and does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks”. The court should not conduct a careful examination of the two marks through a side-by-side comparison.

In the end, the NEOWEB was found to be confusing with GEOWEB and was ordered to be struck from the register.

Calgary – 07:00 MDT

In Pelchat v. Zone 3 Inc., 2013 QCCS 78, a Quebec court decision has addressed the dichotomy between the idea for a TV show, and the “form and expression” of ideas, as embodied in a TV show. In this case, the defendant Zone 3 was sued for a claim of copyright infringement related to its makeover TV show called “Métamorphose”. The lawsuit was brought by Mr. Pelchat, who claimed that his own show “Look” (which aired in the late 1980s) was infringed by Zone 3’s show. Mr. Pelchat claimed his infringed work was a “beauty makeover of a woman on TV through hair, makeup and clothes”.  Copyright law is clear that it will only protect original expressions of an idea, not the idea itself. Thus, there is no infringement where the ideas between two shows are similar, but there is no actual copying of protected original expression.

In this case, the court did review the overall expression of the two shows, the structure, dialogue, sets, characters and other elements of expression. It concluded that Zone 3 did not engage in any copyright infringement.

Thanks to the l’Association du Jeune Barreau de Montréal for its case summary and link to the original judgment.

Contact Field Law’s Entertainment Law experts for advice in this area.

Calgary – 07:00 MDT

Ever wondered if you would infringe a patent but wanted to know before any infringement occurred?

Honeywell International, Inc. and Arkema Inc. are competitors in the field of automotive air-conditioning systems. Honeywell owns certain United States patents covering refrigerant inventions – in this case, innovations for a cooling system with low global warming potential. Arkema was about to enter into certain long-term supply contracts but before doing so, it wanted an advance ruling from the court, to determine whether such conduct would infringe the Honeywell patents. To achieve this, Arkema sought a declaratory judgment under the (US) Declaratory Judgment Act that by entering into contracts with automobile manufacturers, it would not incur liability as an “indirect infringer” of the Honeywell patents.

According to this latest decision, the US Federal Circuit Court of Appeals has ruled that this situation created a controversy that was “sufficiently immediate” to access the relief under the (US) Declaratory Judgment Act.

Read this article from LES: Suppliers May Ask Courts to Rule that They Do Not Indirectly Infringe Patents when They Have Agreed to Supply an Allegedly Infringing Product Even Before Their Customers Have Had an Opportunity to Directly Infringe the Patents.

Thanks to Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P. who have posted a link to the decision here.

Calgary – 07:00 MDT

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“The world has changed dramatically in the last two decades… An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet.”

This statement from the New York Court of Appeals in the recent decision in Overstock v. New York Taxation and Finance (PDF) paved the way for an interesting conclusion on the taxing power of New York State – and by extension, the sales tax that may be applied to many online sales, including sales by Canadian online business into the US market.

Traditionally, a state’s taxing authority was based on “economic activities” by the seller, for example, through its employees or sales agents in that state. The question faced by the court in this case was whether click-through links on a “local website” (that is, a website owned by a local state owner) would qualify to establish “economic activities” in that state. For example, a link to Amazon from a local New York State website has the effect of driving sales to Amazon. The court decided that by compensating the local New York State website owner who has signed-on to an affiliate agreement, Amazon is deemed to have established an “in-state sales force”.  The site which hosts the link is paid a commission, flat fee or price-per-click, and this was considered enough to create a “substantial nexus” to the state. Passive advertisements, by contrast, would not by themselves create a substantial nexus.

It is not clear whether Overstock.com and Amazon will appeal the decision.

In other news, the U.S. Senate voted 74-20 to put The Marketplace Fairness Act of 2013 to a final vote, an Act which would allow states to collect online sales taxes. The OECD is also preparing guidelines on how to handle international value-added taxes, to deal with the current “uncertainty and risks of double taxation and unintended non-taxation”. The 2013 draft of the OECD Guidelines derives from the “neutrality” principle (the notion that value-added tax is a tax on final consumption that should be neutral for business), and the so-called “destination” principle (that tax should be paid in the jurisdiction of consumption).

In the meantime, Canadian online retailers selling into the US marketplace should consider reviewing their affiliate click-through agreements and assess sales-tax collection policies with tax advisors.

Related Reading: New York’s Highest Court Affirms Constitutionality of Click-Through Nexus

Calgary- 07:00 MDT

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Field Law is proud to host the Spring 2013 meeting of the Calgary Chapter of the Licensing Executives Society on May 16, 2013 on the topic of licensing negotiations between members of Canada’s Oil Sands Innovation Alliance (COSIA).

Calgary – 07:00 MDT

When is one trade-mark too close to another? This is a question that we work through collaboratively with our trade-mark clients. The short answer is: “It depends…” The long answer is illustrated by these two recent cases. A trade-mark owner can apply for registration of the trade-mark, and part of the application process involves an opportunity for competitors to oppose the application. Most applications proceed without any opposition. If a trade-mark does face opposition, it is handled through a proceeding that is ultimately decided by the Trade-marks Opposition Board (TMOB). Here are two examples:

1. POMEPURE vs. POM WONDERFUL, both for beverages. In the case of Opposition by PomWonderful LLC to application No. 1,389,758 for the trade-mark POMEPURE & Design in the name of Rash Nagar, the TMOB considered the mark POMEPURE, for a range of beverages. The application was opposed by the owners of the POM WONDERFUL marks for fruit beverages. The Board decided that both marks were weak marks lacking inherent distinctiveness. Thus, neither mark was entitled to a wide scope of protection. Using so-called state-of-the-register evidence, the applicant showed at least 10 other POM-related marks for various fruit-based beverages, all owned by different owners. The Board concluded that ”consumers would be accustomed to some extent to seeing marks made up of the prefix ‘POM’ in the marketplace for alcoholic and/or non-alcoholic beverages. Accordingly, those consumers would be likely to distinguish such marks by focusing on their other components.” For that reason, the opposition failed and the mark was allowed to proceed.
2. CAMILION vs. CAMÉLÉON & Design, both for software. In Opposition by Cameleon Software SA to application No. 1,422,576 for the trade-mark CAMILION in the name of Camilion Solutions Inc. a software company applied for the trade-mark CAMILION, but was opposed by the owner of the registered mark CAMÉLÉON & Design. An applicant has to prove that the absence of confusion is more probable than its existence. After weighing the Section 6(5) factors, the TMOB decided that the two marks were too close. The applicant’s mark was refused due to confusion with the existing registered CAMÉLÉON & Design mark.

Calgary – 07:00 MDT

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When a cloud privacy breach occurs in Canada, what happens? In some cases, businesses are subject to mandatory breach notification requirements. This means that a privacy breach – whether as a result of a hacker, a lost USB or some other human error – must by law be reported to the commissioner and to affected individuals. Ontario has implemented mandatory breach notification under its Personal Health Information Protection Act. In Alberta, organizations subject to the Personal Information Protection Act (PIPA) are required to report a breach to the commissioner “without unreasonable delay” where a “reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure”.

The “real risk of significant harm” requires some analysis in the event of a breach and the Alberta commissioner’s Mandatory Breach Reporting Tool (PDF) has been released recently, to assist organizations determine if they are required to report a breach under section 34.1 of PIPA. This area of law may be changing further: a private members bill  was recently introduced in Parliament to implement mandatory data breach reporting in the federal personal information protection law.

Here’s a recent case that illustrates the pitfalls of a cloud privacy breach in Canada:

• In the recently released decision relating to WhatsApp (Report of Findings: Investigation into the personal information handling practices of WhatsApp Inc.), the Canadian and Dutch privacy authorities investigated WhatsApp Inc. a US company operating “WhatsApp Messenger”, a cloud-based cross-platform mobile messaging app allowing the exchange of messages for iOS, BlackBerry, and Android platforms.
• The Commissioner launched an exhaustive review of the privacy aspects of the service after complaints regarding WhatsApp’s information-handling procedures, including the collection of more information than was necessary, the potential for privacy breach, the lack of encryption.
• While the story generated damaging headlines, WhatsApp did work with the Commissioner to resolve many of the privacy concerns.
• This investigation also shows the extent to which international privacy watchdogs will work together to launch an investigation that concerns personal information that crosses international borders.

The privacy lessons are clear: get advice on privacy implications of the cloud-based service, and don’t underestimate the importance of well-drafted privacy policies and user terms. Cloud service providers should also take time to understand the breach notification protocols that would apply in the event of a privacy breach.

Calgary – 07:00 MDT

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ICANN’s new gTLD process has taken another step forward. The period for filing formal objections against new generic top-level domains (gTLDs) has now been closed, and the Trademark Clearinghouse has been opened. The Clearinghouse is a global database of trade-marks to permit trade-mark owners to verify trade-mark information and use it to support trade-mark claims as the new gTLDs are rolled out. ICANN has announced that verification services are available now.

Watch for more updates in this area and if you are a Canadian trade-mark owner, check back as we will post details about how to submit your trade-mark to the Clearinghouse.

Related Reading: Another Update on the New gTLDs

Calgary – 10:00 MDT

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The Canadian Intellectual Property Office has released guidance on “Computer-Implemented Inventions” as planned, in the wake of the Federal Court of Appeal decision in Amazon.  While “software” is technically not patentable, a “computer-implemented invention” is.  Such an invention could fall into one of several categories: a method (art, process or method of manufacture), machine (generally, a device that relies on a computer for its operation), or product (an article of manufacture). As before, computer programs, data structures and computer-generated signals alone are not patent-eligible.

Calgary – 07:00 MDT