Banning human embryonic stem cells patents – Has the CJEU impeded stem cell research?
By: Dina Anastas

Summary

The Court of Justice of the European Union (‘CJEU’) has invalided a patent concerning the use of human embryonic  stem cells (hESCs)¹, which required the prior destruction of human embryos, contrary to the European Patent Office (‘EPO’) granting practice. Raising the question whose approach is correct?

On 18 October 2011, the CJEU delivered its much anticipated decision in Oliver Brüstle v Greenpeace e.V. (case C-34/10) on a referral by the German Federal Supreme Court concerning the patentability of inventions relating to the use of hESCs. The decision as expected largely followed the opinion of the Advocate-General Bots, which was delivered in March 2011.

The CJEU, in interpreting the term ‘human embryos’ in Article 6 of the European Directive 98/44/EC on the legal protection of biotechnological inventions (the ‘Biotechnology Directive’), ruled that an invention will not be patentable if the subject matter of the patent application requires the prior destruction of human embryos or their use as a base material, ‘whatever the stage at which that takes place’. This will be so even if the subject matter claimed in the patent application makes no reference to the use of human embryos.

The decision of the CJEU applies throughout the European Union (‘EU’) and cannot be appealed.   While the decision may have provided useful clarification as regards the interpretation of ‘human embryos,’ as far as patentability is concerned, opinions are sharply divided as to the correctness of the decision and its implications within Europe. 

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Ontario's new tort of Invasion of Privacy
By: Kyle Magee, with assistance from James Tumbridge & Joe Thorne

Summary:

The Ontario Court of Appeal in Jones v. Tsige1. has confirmed Ontario law recognises a right to bring a civil action for damages for the invasion of privacy:  There is now a new cause of action in Ontario for ‘intrusion upon seclusion.’  The decision creates a remedy for invasion of personal privacy and also leaves open the possibility that three other causes of action for invasion of privacy may be recognised in Ontario in the near future.

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Online Defamation Order : You will be found
By: Christopher Purdon, San Nguyen, David Haughton and James Riewald

Warman v. Wilkins-Fournier  2011 ONSC 3023.

Motion brought by the plaintiff requesting an Order compelling the defendants to produce relevant documents in their possession and control relating to the identities of three John Doe defendants.  The defendants owned a operated a message board which allowed users to post comments on a variety of topics.  The three John Doe defendants were alleged to have posted defamatory comments.  The documents demanded were the IP addresses used to create the accounts in question, the e-mail addresses and personal subscriber information and the IP addresses used by the John Doe defendants to make the alleged defamatory comments.  There was no issue as to the relevance of the documents or the fact that the data came within the meaning of the term “document”. 

In deciding whether to order disclosure the Court considered four principles: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.  The Court held that the first three factors must be weighed and balanced in the context of the fourth factor.

The Court found that the plaintiff had taken all reasonable steps to identify the parties by examining their posts and cross-referencing their pseudonyms.  There was no reasonable expectation of privacy since the use of pseudonym evidenced an intention to remain anonymous not an expectation.  Further, the terms of use for the website made it explicit that members could be prosecuted for defamatory comments.  The Court went on to find that the plaintiff had established a prima facie case that the postings were defamatory.  Finally, the Court found that due consideration had been paid to the John Doe defendants’ right to privacy and freedom of expression.  Accordingly, the Court ordered the disclosure of all the relevant documents in the defendants’ control.

Attachments & emails are not the same - but both are discoverable!
By: Christopher Purdon, San Nguyen, David Haughton and James Riewald

Addressing the question of whether emails and attachments should be considered separately for the purpose of assessing whether each item can be withheld on the grounds of privilege, the Special Master observed that courts generally treat attachments as separate from email correspondence and should be logged that way, such as in the case of privilege claims, absent an agreement between the parties or an order of the court providing otherwise.  The Special Master agreed there was a good basis to treat emails and attachments separately based on the relevancy requirement for discovery.  However, the Special Master also noted the completeness standard of discovery implies that an entire document may be required to be introduced into evidence where it “ought in fairness” to be considered contemporaneously.   Overall, the Special Master noted that prevailing practice is for parties to produce any non-privileged attachment to an email if the emails is determined to be relevant, and to produce the email if any of the attachments are relevant.  Although this practice is not an ironclad legal standard, it was held to be a helpful guide for related discovery disputes. 

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