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Industrial Property ANNUAL SURVEY OF CANADIAN LAW INDUSTRIAL PROPERTY William L. Hayhurst, Q.C. * I. INTRODUCTION ....................................... 394 II. RECENT LEGISLATION ................................. 395 III. PROPOSED LEGISLATION ................................ 398 IV . PATENTS ............................................ 399 A. Matters in Which the Patent Office has OriginalJurisdiction ............................... 399 1. Conflicts ...................................... 399 2. Compulsory Licences ............................ 400 3. Subject Matter Capable of Being Patented .......... 401 (a) Printed M atter .............................. 402 (b) Gam es ..................................... 402 (c) Mental Processes and Computer Programs ...... 402 (d) Living M atter ............................... 405 (e) Medical Treatment of Animals and Humans ...... 407 (f) Medical Inventions .......................... 408 (g) The Progeny of Sandoz v. Gilcross ............. 410 (h) Aggregations and Exhausted Combinations ...... 412 (i) Synergism .............................. 412 (ii) M ixtures ............................... 412 (iii) The Aggregative or Unnecessary Addition ... 413 4. D ivision ....................................... 4 15 5. R eissue ....................................... 4 16 6. D isclaimer .................................... 417 B. Substantive Matters in the Courts .................... 418 1. Intervening Rights .............................. 418 2. Personal Liability of Persons in Control of CorporateInfringers .......................... 420 3. Double Patenting ............................... 420 Ottawa Law Review [Vol. 11:391 4. Sufficiency of Disclosure ......................... 421 (a) Promised Results ............................ 421 (b) Date for Sufficiency ......................... 422 5. Anticipation by a Printed Publication .............. 423 6. Obviousness ................................... 424 (a) Date at Which Obviousness is Tested ........... 424 (b) Obviousness over Hard-to-FindPrior Art ....... 425 (c) Obviousness to Try .......................... 426 7. Scope of Claims ................................ 426 (a) Claiming What is Not an Invention ............. 427 (b) Claiming What is Not Described as an Invention ............................. 429 (c) Speculative Claiming of What May be an Invention ............................. 433 (d) Claiming Too Little .......................... 433 C. ProceduralMatters in the Courts .................... 434 1. Pleading - Sins of the Patentee .................. 434 2. Interlocutory Relief ............................. 436 3. Reference to Patent Office Files ................... 440 4. Expert Evidence ................................ 441 D. Anguished Comments .............................. 441 V. TRADE MARKS AND UNFAIR COMPETITION .................. 442 A. Effects of Assigning and Licensing Trade Marks ........ 442 B. Trade Marks Associated with a Family of Companies .... 447 C. Distinctiveness at Common Law ...................... 449 D. Appropriation of Personality ........................ 450 E. Federal Jurisdictionin Relation to Acts of Unfair Competition .......................... 452 F. Passing Off - Crazy Horse is Dead .................. 453 G. Passing Off v. Trade Mark Infringement .............. 454 H. UnregistrableMarks ............................... 455 I. Statutory Trade Mark Use .......................... 456 1. Assertions of Use in Trade Mark Applications ....... 456 2. Who is a User? ................................ 457 3. Use on Samples ................................ 457 4. Use in Canadafor Wares ........................ 458 5. Use in Canadafor Services ...................... 458 6. Making a Trade Mark Known in Canada ........... 459 J. Opposition Proceedings in the Trade Marks Office ...... 460 1. Rejections of Statements of Opposition by the Registrar ................................ 460 2. Pleadings in Oppositions ......................... 461 3. Oppositions Based on Non-Compliance with Section 29 of the Trade Marks Act ............ 462 1979] Industrial Proper, 393 K. Section 44 Proceedings ............................. 464 L. Federal Court Proceedings to Expunge Trade Mark Registrations ........................... 466 1. Procedure ..................................... 466 2. Public Policy .................................. 466 3. Distinctiveness - Dates ......................... 467 4. Abandonment .................................. 468 VI. INDUSTRIAL DESIGNS ................................... 469 A. The Applicant for Registration ....................... 469 B. What is Registrable as a Design? .................... 469 C. The Description Requirement ........................ 473 D. The Marking Requirement .......................... 480 E. Remedies for Design Infringement .................... 480 VII. COPYRIGHT ........................................... 481 A. Subsistence of Copyright ........................... 481 1. Published Works ................................ 481 2. Ideas and Information ........................... 482 3. Titles ......................................... 483 B. Ownership of Copyright ............................ 483 C. Licensed Acts ..................................... 486 D . Infringing Acts .................................... 486 1. Radio Communication ........................... 486 2. Videotaping .................................... 487 3. Commercial Deletion ............................ 487 4. Indirect Copying ............................... 489 5. Importation of Copies ........................... 491 6. Infringement in Relation to Sound Recordings ....... 495 E. Remedies for Copyright Infringement ................. 496 1. Preservation of Evidence ......................... 496 2. Scope of Injunctions ............................. 497 3. Delivery Up ................................... 497 4. D am ages ...................................... 498 (a) Quantum ................................... 498 (b) The Innocent Defendant ...................... 498 (c) The Wilful Defendant ........................ 499 5. The Limitation Period ........................... 499 VIII. THE FUTURE ........................................... 500 Ottawa Law Review [Vol. i11:391 I. INTRODUCTION I cannot resist this opportunity to utter an anguished comment. Claim I (to use an example) of this patent has approximately 178 words. The Gettysburg address has, I understand, 270 words. But the Gettysburg masterpiece uses not only words but punctuation, including periods, to convey its meaning. Claim I has no periods. It is one long, complicated sentence employing approximately 6 commas. It is said the Patent Rules . and the Patent Office require that claims be stated in this way - one sentence. I suspect the real answer is that this drafting method is merely traditional . My perplexed cry is: What is wrong with periods throughout a claim or section? Why, in claims and statutes, do they appear to be anathema? In patent suits, claims are often, at best, riddles. When technical and difficult words and phrases are all bundled into one huge sentence, the claim passes from riddle to enigma. I The claim is not intended to form part of the description of the invention but a determination of the boundaries wherein the invention is confined, so as to provide the reader with a reliable definition of the right assertable by the patentee. The declarant Mr. Spencer is thus directing his mind to the wrong criterion when he states that the possibility of uncertainties and ambiguities is greater when "a draftsman attempts to describe mechanisms of great complexity by means of a single sentence." There is certainly no reason why such an attempt should be made. What the claim is needed for is to distinguish and not to describe. Nor is it much to the point that engineers in the applicants' employ confirm their retention of the kindergarten experience that it is easier to read a succession of simple sentences than a single complex sentence. They could with equal justification have stated a preference for mono to polysyllabic 2 words . The former of the foregoing comments is by a generalist, the latter by a specialist judge. Specialists and generalists alike may both suffer from a certain intolerance and this characteristic will probably be observed at some places in the present Survey. So as to pick up where the valuable reviews by George E. Fisk left off,3 this Survey covers Canadian patent cases for the period 1973 to mid-1978. For trade mark cases it has been necessary to regress a little * Of the Bar of Ontario 'Xerox of Canada Ltd. v. IBM Canada Ltd., 33 C.P.R. (2d) 24, at 88 n. 14 (F.C. Trial D. 1977) (per Collier J.). 2 Leonard's Application, [1966] R.P.C. 269, at 275 (P.A.T. 1965) (Lloyd-Jacob J.). In the United States, where the claims of most Canadian patents originate, the division of claims into sentences is not allowed by the Patent Office. See MANUAL OF PATENT EXAMINING PROCEDURE, s. 608.01(m) (3d ed. U.S. Dep't of Commerce). 3 Patent cases for the periods 1965-68 and 1969-72 are surveyed in Fisk, Industrial PropertyLaw, 3 OTTAWA L. REV. 220 (1968) and Fisk, IndustrialProperty, 6 OTTAWA L. REV. 455 (1974). Trade mark cases for the period 1967-69 are covered in Fisk, Industrial Property: Trade Marks and Unfair Competition, 4 OTTAWA L. REV. 220 (1970). A useful index to the literature was published by The Patent and Trademark Institute of Canada. See P. PARR, CENTENNIAL INDEX (2d ed. 1975). 1979] Industrial Property farther, to 1970. Discussion of copyright
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