World Wide Web – When Do You Cross the line?

World Wide Web – When Do You Cross the line?

In this article we will discuss two recent cases that may of interest to businesses and individuals regarding the World Wide Web.  There is a great deal of information on the web that is useful to business.  Recently the Supreme Court of British Columbia was asked to consider what use companies can make of information taken from competitor’s websites, in the case Century 21 Canada Limited Partnership et al v. Zoocasa Inc.  Zoocasa was using information taken from the Century 21 website.  The lawyer for Zoocasa argued that information made available on the internet must be available for use by everyone through indexing, linking and otherwise, without contractual restrictions.  It was suggested that this was required for the proper functioning of the web.  The lawyer for Century 21 argued that Zoocasa had breached the contractual terms accepted by users of the Century 21 website.  Mr. Justice Punnett decided that although the manner of contracting had changed, traditional contract law still applied to the web.  The Century 21 website had Terms of Use associated with the website; Zoocasa had actual notice of those Terms of Use, had accepted them and were bound by them.   In addition, Century 21 had copyright in the pictures and articles on the website.  In taking the pictures and articles, Zoocasa had infringed the copyright of Century 21.  The lesson to be taken from this case for website owners, is to establish Terms of Use and ensure that users of your website have notice of those Terms of Use and accept them to create an enforceable contract.

In this world of GOOGLE, FACEBOOK, and LINKEDIN, there is also a great deal of information on the web regarding individuals.  In most cases, it is completely proper to access this information.  For example, I had to examine a witness under oath a few months ago and availed myself of information that was on his FACEBOOK page to assist me.  Recently the Ontario Court of Appeal was asked to consider where the line should be drawn with respect to intrusions into one’s privacy in the case of Jones v. Tsige.  Winnie Tsige was the common law partner of the former husband of Sandra Jones.  Ms Tsige was also a bank employee.  Ms. Tsige used her position at the bank to repeatedly access online records that are not accessible to members of the public and inspect Sandra Jones private banking records.  Presumably, this information was being passed along to Mr. Jones for use in a dispute with Mrs. Jones.  The Court found this intrusion to have crossed a line.  This is an unusual situation of an abuse of bank databases by a bank employee and may not have had much application to the rest of us, were it not for the fact that the Ontario Court of Appeal had to create a new cause of action of intrusion of privacy to give Sandra Jones a remedy.  That remedy is now a precedent.  The boundaries of the remedy will be set by future cases.  It will likely be relied upon by celebrities against overly aggressive paparazzi.  Should you be so unfortunate as to experience some intrusion into your privacy that is excessive, unwarranted and deserving of sanction, you should speak to your lawyer.

Eurocopter v. Bell Helicopter Textron Canada

Eurocopter v. Bell Helicopter Textron Canada

I want to make you aware of the case of Eurocopter v. Bell Helicopter TextronCanadadecided earlier this year by Mr. Justice Martineau of the Federal Court relating to a patent on a skid type landing gear for helicopters.  This case may alter the approach taken when drafting mechanical patents and when trying to “design around” mechanical patents.

In patents relating to pharmaceuticals, it is common to describe one or more specific compounds and their medicinal effect, but to claim a broader class of compounds expected to have a similar medicinal effect. To deal with this common disparity in pharmaceutical patents between what is described and what is claimed, Canadian courts apply what is referred to as the “sound prediction” doctrine, which essentially requires that there be a proper factual foundation and line of reasoning to support a prediction of a promised utility or effect. If there is not a proper factual foundation and line of reasoning in the patent application, the patent is invalid; even if the inventor turns out to be correct.

In the Eurocopter Case, the Judge has applied the doctrine of “sound prediction” to mechanical patents.  This new development raises a warning flag for all patent agents involved in the protection of mechanical inventions.  A good patent agent wants to protect not just the client’s invention, but also possible “variations”.  In the Bell Helicopter case, the landing gear had a forwardly angled support member to reduce ground resonance.  However, the patent also illustrated and described a “variation” of landing gear with a rearwardly angled support member.   Under cross-examination representatives of Bell Helicoptor admitted that a landing gear with a rearwardly angled support member had never been built, nor had mathematical calculations been made to confirm that a rearwardly angled support member would work the same as a forwardly angled support member.   There was nothing in the patent nor in the evidence before the Judge that provided a “sound prediction” for confirming that a rearwardly angled support member would work.  For this reason, the Judge invalidated any claim to a rearwardly angled support member, whether or not it ultimately turns out to work.

Bell Helicopter was aware of the Eurocopter patent and set out to “design around” the patent.  This “design around” was unsuccessful, as the Judge found that Bellhad used a forwardly angled support member and, therefore, infringed.  Eurocopter asked for punitive damages to punish Bell Helicopter, in addition to any other damages to which they may be entitled.   Punitive damages is an extraordinary form of remedy, not usually awarded in these types of cases.  Mr. Justice Martineau broke new ground in granting the request and awarding punishment damages stating ”Punitive damages are required in this case not only to punish Bell but to deter others from acting in a similar manner. The fact that only twenty-one Legacy gears were used by or made for Bell is besides the point and does not take into account the reality of the length of time, the gravity and planification of the infringement. Bell’s overall conduct is highly reprehensible and constitutes a callous disregard for the rights of Eurocopter who was forced to institute the present action”. The amount of the punitive damages, as well as the amount of damages for the twenty-one landing gears Bell Helicopter manufactured, is to be determined in a damages hearing.

As it is common for patent agents to be hired to assist in “designing around” existing patents, this aspect of the Eurocopter case raises another red flag.  It would appear that if one undertakes a “design around”, one had better ensure that it is done properly.  This case is currently under appeal, but stands as Canadian law unless overturned.