|
|
|
|
|
|
||
|
|
|
|
Arts and Crafts: The Patentability of Business Methods in Canada*by Mark B. Eisen†1.0 IntroductionFor many years the conventional view has been that business methods are not patentable in Canada. The recent U.S. Federal Circuit Court of Appeals decision in State Street Bank v. Signature Financial1 has caused many practitioners to reconsider the patentability of business methods in Canada, sparked by a strong renunciation of the business method exception in the United States. With the expectation of a proliferation of patent applications for business methods that will follow from the United States, augmented by the recent onslaught of patent applications for Internet-related activities, this issue has moved to the forefront of patent law in Canada. Whether business methods should be entitled to patent protection in Canada involves many competing policy considerations, which are largely beyond the scope of this discussion. Instead, this paper will consider whether a novel business method is entitled to patent protection under the current provisions of the Canadian Patent Act2 and examine circumstances in which it may be appropriate to consider patent protection for a business method, strategies which might be used to claim a business method in terms which meet conventionally accepted subject matter limitations under Canadian law, and possible alternatives to patent protection. [ BACK TO TOP ] 2.0 The State Street DecisionIn State Street the Federal Circuit Court of Appeals reviewed the rejection of a patent application for a "Data Processing System for Hub and Spoke Financial Services Configuration", which implemented an investment structure relating to mutual funds that provided the advantage of economy of scale with the tax benefits available to a partnership. The system performed complex calculations that provided means for a daily allocation of assets of two or more mutual funds ("spokes") which pooled their assets in a common partnership ("hub"), and transformed discrete data by a series of calculations into a final share price. The court below concluded that the claims were directed to a "machine", which is accepted as patentable subject matter, but that patentability was precluded under the judicially-created "business method" exception to patentability. The Court of Appeals ruled that the invention was not unpatentable as a mathematical algorithm, formula or calculation, because it produced a useful, concrete and tangible result. At the same time the court took the opportunity to lay to rest the "ill-conceived exception" rendering business methods unpatentable,3 stating: "Whether the claims are directed to subject matter within §101 should not turn on whether the claimed subject matter does 'business' instead of something else".4 3.0 Patentability of Business Methods in CanadaIt is against this backdrop that many practitioners today find themselves questioning the limits of patentable subject matter in Canada. The issue of what types of subject matter should not be patentable is one of public policy, and while there does not appear to be a definitive policy justification for the exclusion of business method patents, more to the point for present purposes is the question of whether there already exists a statutory or jurisprudential basis for excluding the patentability of business methods in Canada. The patentability of the subject matter of an invention is fundamental to any consideration of patentability under the Canadian Patent Act. It is, as we are reminded in State Street, the first door which must be opened on the difficult path to patentability.5 To determine the scope of patentable subject matter, resort must be had to the definitions provided in the Patent Act. [ BACK TO TOP ] Under the Act, "invention" is defined as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter."6 Other prerequisites to obtaining a patent for an invention, including novelty and utility, become relevant only once the subject matter is determined to fall within the limits of an "invention" so defined. In Shell Oil Co. v. Commissioner of Patents the Supreme Court of Canada adopted a broad definition of the term "art" as:
This interpretation of "art" was recently considered by the Trial Division of the Federal Court in Progressive Games Inc. v. Commissioner of Patents,8 in an appeal from the Patent Appeal Board's consideration of an application to patent a variation of the card game "poker". The board had rejected the application on the basis that the applicant's method was "the result of mere mathematical calculation rather than the exercise of the inventive faculty resulting in the discovery of some previously unknown advance in human knowledge by the exercise of the human intellect."9 The court restated the definition of "art" from Shell Oil in a three-pronged test, as a process that:
ii) is a new and innovative method of applying skill or knowledge; and iii) has a result or effect that is commercially useful.10 The court concluded that the invention had a practical application, as it involved the physical manipulation of playing cards and was commercially useful as casinos had paid significant license fees for the right to use the game.11 However, the court upheld the board's refusal of the application on the basis that the invention was not novel, holding that the methods of the invention "do not substantially modify the poker game as it exists nor do they create a new game".12 Thus, the second prong of the test was not satisfied. The court did not find that the invention was not a method of applying skill or knowledge, merely that it was not a new and innovative method. By implication the court rejected the Patent Appeal Board holding that the method of the invention was not an "art". Had the invention been novel, ostensibly all three branches of the test propounded by the court would have been satisfied. [ BACK TO TOP ] This case suggests that the definition of "invention" in the Act does not preclude the patentability of a novel method, including a novel business method, as long as it involves the application of skill or knowledge, has a method of practical application, and has a result or effect that is commercially useful. The second branch of the test, which requires that the invention be "new and innovative," goes beyond the threshold of proper subject matter and prematurely addresses the issue of novelty without first resolving the subject matter issue. The court's consideration of the novelty requirement as part of the definition of "art" may render the decision somewhat more difficult to rely upon as an authority in favour of the patentability of business methods. However, the basis for patentability of a novel business method seems inherent in the test propounded by the court in Progressive Games. The Federal Court of Appeal dismissed the applicant's appeal, stating:
This does little to clarify the decision of the court below, and the Court of Appeal's sensitivity to the greater underlying issue is manifest in its concluding sentence. [ BACK TO TOP ] A "process" defines a particular method of operation in any manufacture.14 Fox considers that the term "process" is embraced within the meaning of the term "art,"15 although according to conventional canons of statutory construction, by including it as a separate category of subject matter the term "process" must have been intended to mean something other than an "art". In either case there is Canadian authority to the effect that that a patentable "process" requires two elements - a method or procedure and the material(s) to which it is applied - and that the process must produce a useful result.16 This being so, whether or not it produces a commercially useful result it may be difficult to argue that a business method is a "process" per se where there is no "material" to which the method is applied. In State Street the "product" was a mutual fund price. The prompt availability of this information had a value to the investor as it created a more effective investment vehicle. There appears to be no general restriction in Canada which would prevent economic information from being considered a form of vendible product,17 but in a patent context the case law would suggest that the method of producing such a product is unlikely to be patentable as a "process" because there is nothing material to which the process is applied. 3.4 Manufacture, Machine or Composition of Matter The term "manufacture" refers to the result of a process, rather than the process itself,18 and as such could not include a business method. It is self-evident that a business method per se cannot be a "machine" or "composition of matter". [ BACK TO TOP ] The Patent Act expressly excludes from patentable subject matter any mere scientific principle or abstract theorem.19 From the use of the words "mere" and "abstract" in this exclusion it can be taken that a scientific principle or theorem standing alone, divorced from any practical application, is unpatentable. But where the scientific principle or theorem is coupled with any practical application, can it be said to be a "mere" scientific principle or an "abstract" theorem? Again, canons of statutory construction would dictate that these words were included for a reason, and it is a reasonable implication that Parliament intended for any scientific principle or theorem that goes beyond mere theory and has a practical application to be patentable.20 Additional exclusions to patentable subject matter which have evolved through Canadian jurisprudence include inventions which fall into the realm of professional skill. For example, in Lawson v. Commissioner of Patents21 the applicant sought to patent a subdivided parcel of land. The Exchequer Court characterized the invention as a "method" and, having determined that the result occurred not from some process of invention but rather from the exercise of professional skill, held that the invention did not qualify as an "art". Another apparent basis for upholding the Commissioner's rejection of the application was that the invention, as a mere plan, did not change the physical character or condition of the land and therefore fell outside of the court's definition of "art", which was:
Lawson would thus exclude from the definition of "art" any method which does not involve the application of physical agents to physical objects. This is not inconsistent with the holding in Progressive Games, which determined that the method of playing poker had a practical application because it involved the physical manipulation of physical objects (playing cards).23 However, the definition in Lawson appears to be significantly narrower than the subsequent definition of "art" propounded by the Supreme Court of Canada in Shell Oil, which extends to "new and innovative methods of applying skill or knowledge provided they produce effects or results commercially useful to the public."24 Insofar as the Shell Oil definition would seem to encompass an act or series of acts that does not necessarily result in a physical change to a material object, the definition of "art" given in Lawson might now be considered obsolete. In fact, the court in Shell Oil determined that Lawson's application was rejected not because the subject matter of the application was not an "art" within the definition in the Patent Act, but because it related to professional skill rather than to industry, trade or commerce.25 Applications involving other types of professional skills, including methods of speech therapy, methods of designing articles, teaching or arranging flowers, have been denied for the same reason.26 [ BACK TO TOP ] The professional skills exclusion actually involves two facets. First, inventions which relate to professional skills, i.e. those which merely replace the exercise of professional skills by a professional, are unpatentable in Canada because professional skill is considered to fall outside the field of industry, trade and commerce.27 Second, an invention in any art or science which depends upon the exercise of professional skill or judgment of the person using the invention to be effective, is not patentable because the subject matter is not controllable and reproducible so that the desired result inevitably follows whenever the invention is worked.28 In the second situation, the mere requirement that an invention calls for the use of mental elements does not necessarily exclude the invention from patentable subject matter as long as the desired result inevitably follows when invention is worked. For example, in Itek Corp's Application29 the Commissioner of Patents held that where the invention specified series of steps, independent of human intelligence or reasoning processes, and no subjective interpretation or judgment was required, a mental step could form part of the invention. Such inventions should therefore be patentable as long as the result must flow from the implementation of the method without the use or application of professional skill or judgment. In the first situation, clearly certain types of professional skills do fall outside the field of industry, trade and commerce, medical treatments being an obvious example. One has to wonder how professional skills which are practiced largely or solely for business purposes, such as the subdivision of land as in Lawson by a real estate developer, could be considered to fall outside of the field of industry, trade and commerce. Nevertheless, Canadian authorities such as Lawson and Shell Oil do support the notion that inventions relating to professional skills fall outside of the field of industry, trade and commerce, and therefore outside of the definition of "art," and the Patent Office is following this line of authority. In Re Patent Application No. 564,17530 the Patent Appeal Board held that the applicant's "System for the Operation of a Financial Account" was unpatentable because the applicant used a general purpose computer to make decisions which were formerly made using the professional skills of a financial advisor. The claims in this application were to a system, and as such included tangible computer components, but the board nevertheless rejected the application, citing Lawson and stating that "It is well established that professional skills are not patentable subject matter."31 It is difficult to envisage how a system for operating a financial account - which has a singularly business objective - could be considered to fall outside of the field of industry, trade and commerce. However, the result is consistent with current Canadian authorities. [ BACK TO TOP ] 4.0 Business MethodsIn light of the above, for purposes of this discussion a "business method" will be narrowly defined as a method of doing business which:
ii) is not a mere scientific principle or abstract theorem; and iii) does not involve professional skills, either being merely a replacement for the exercise of professional skills or requiring the exercise of professional skill or judgment in order for the desired result to be achieved when the invention is practiced. If the business method involves the application of a process to a material object to produce a useful result it is already accepted as falling within the definition of patentable subject matter in Canada,32 and the mere fact that the invention may also involve a method of doing business should not detract from its patentability. If the business method falls within the established exclusions, it is unpatentable regardless whether business methods generally are properly patentable subject matter. The above review of current Canadian law suggests that a business method would have to qualify as an "art" in order to satisfy the definition of "invention" in the Patent Act. The definition of "art" in Shell Oil would ostensibly encompass useful business methods, in that a useful business method would ordinarily produce effects or results which are commercially useful to the public: delivering goods or services more efficiently, more effectively, or more economically. The Canadian Patent Act does not specifically exclude business methods from the realm of patentable subject matter. Why, then, have practitioners conventionally considered business methods to be unpatentable? [ BACK TO TOP ] There is no Canadian case which holds that business methods per se are not patentable subject matter. Lawson has been construed as supporting the proposition that business methods are not patentable in Canada,33 but the court in Lawson does not characterize the claims at issue in that case as covering a business method. Further, the court's conclusion in Lawson that "words of limitation must be read into s. 2(d)"34 was based on authorities which imported the limitation of inventive ingenuity into the definition of "invention," as a limitation inherent in the meaning of a word actually appearing in the statute. But to go further and introduce extraneous limitations which are not inherent in the words Parliament has chosen to express its intentions is an approach which was clearly rejected by the majority of the Federal Court of Appeal in the recent "Harvard oncomouse" decision:
As noted above, the Supreme Court in Shell Oil determined that Lawson's application was rejected not because the subject matter of the application was not an "art," but because it related to professional skill rather than to industry, trade or commerce.36 Therefore, at this point the value of Lawson as an authority against the patentability of business methods seems slight. Fox states:
His view that business methods are not suitable subject matter for patents in Canada was based on early UK authorities, and as discussed below the value of UK authorities as precedents on this issue is now doubtful. Moreover, the case cited by Fox as supporting this proposition did not even involve a business method. The court in that case held that the invention, a novel arrangement of print on a newspaper page which made the newspaper easier to read when folded, was patentable.38 The court's passing comment "You cannot have a Patent for a mere scheme or plan - a plan for becoming rich; a plan for the better government of a State; a plan for the efficient conduct of a business",39 was obiter dicta and made without supporting authority. [ BACK TO TOP ] Does this represent the law in Canada? The danger of relying upon UK authorities in construing the provisions of the Canadian Patent Act has been confirmed by the majority in the Court of Appeal decision on the patentability of the Harvard oncomouse:
The court cited the following passage by Pigeon, J.:
The majority of the Court of Appeal thus preferred the precedential value of U.S. decisions, for the greater similarity between the respective patent statutes and the underlying reasoning of the U.S. courts' interpretation of the statutory language:
In the Harvard oncomouse decision the majority referred to the Patent Appeal Board's definition of "art" from Re Application No. 003,389 of N.V. Organon43:
This definition does not inherently exclude the patentability of business methods and, like the definition in Shell Oil, appears to encompass business methods without much difficulty, as a productive art not having intellectual meaning or aesthetic appeal alone. By this definition a business method, like any other method, should be patentable subject matter as long as it is controllable and reproducible by the means disclosed so that the desired result inevitably follows whenever the invention is worked, without the exercise of professional skill or judgment; the subject-matter has utility which is beneficial to the public in practical affairs such as that in relation to trade, commerce or industry; and it is a "productive art". [ BACK TO TOP ] Some would perhaps argue that a "productive art" requires the production or alteration of a material thing, which goes back to the differences between the definitions of "art" applied in Lawson and Shell Oil. But those actually doing business and concerned on a day-to-day basis with productivity might justifiably take issue with the suggestion that a more efficient or economical method of doing business is not "productive." The definition of "art" adopted by the Supreme Court of Canada in Shell Oil, which remains the controlling authority, extends to new and innovative methods of applying skill or knowledge provided they produce effects or results which are commercially useful to the public. In contrast to Fox's view that there must be a mechanical or chemical underpinning to an invention, which bases the determination entirely on the nature of the art, the line drawn by the Shell Oil definition seems to be based more on the effects or results produced by an invention being commercially useful to the public, and less on distinctions between the scientific arts and other arts. While some practitioners might find this intuitively difficult, in that patents have always tended to import a relation to the technical or scientific arts, to accommodate the possibility that patents were intended to be available for such non-scientific arts as business methods does not require a strained interpretation of the statute.45 Ultimately, in order for an invention to produce effects or results which are commercially useful to the public there must be a way of getting the invention to the public. It therefore seems anomalous to afford patent protection to a new and useful product, and to a new and useful method of making the product, but not to a new and useful method of bringing the product to market, which is the only way that the public can actually reap the benefit. It appears from the Harvard oncomouse decision that reliance upon UK authorities to define the meaning of the term "invention" in the Patent Act is no longer appropriate and the definition of "invention", as most recently interpreted by Canadian courts, arguably supports business methods as patentable subject matter in Canada. Whether a novel method of making widgets should be any more deserving of patent protection than a novel method of selling widgets remains an open question, but it is a question of public policy and not one of statutory interpretation. [ BACK TO TOP ] 4.3 When to Consider Patenting a Business Method Any novel business method that by its nature cannot be kept secret should be considered for patent protection. Given that the patentability of business methods in Canada is still unknown, cost is the only risk of seeking patent protection for a business method that must necessarily become known to the public through its implementation. With the exception of ventures which involve very low start-up costs, for example certain Internet-related business methods, the cost of applying for a patent will usually not be a significant portion of the front-end expense of implementing a new business method. The law in this area is unsettled at best, and may in the near future be resolved in favour of patent protection for business methods. The peril of having failed to seek patent protection for such an invention could then be much more serious: a patent cannot be obtained unless the patent application is filed within one year of the invention being made available to the public directly or indirectly by the owner.46 Missing this window of opportunity will be fatal to securing patent protection. If the business method is capable of being kept secret, a harder choice has to be made. With limited exceptions, virtually all countries publish pending patent applications or make them available to the public after a specified interval.47 With the current backlog of patent applications awaiting examination in the Canadian Patent Office, typically a Canadian patent application will not have been examined by the time it becomes available to the public. Therefore, where a business method may involve features that can be kept secret and are not easily "reverse engineered," one must carefully consider whether patent protection is justifiable. This might include consideration of what features of the invention may be novel; whether the novel features per se are capable of being kept secret; and whether the novel features provide an actual competitive advantage or are merely competitively equivalent to known alternatives. The analysis should also take into account whether the business method would be advantageously patented in the United States now that State Street has opened the door to business method patents, because publication of the business method through the patent application process in any foreign country will equally destroy any confidentiality associated with the business method. [ BACK TO TOP ] 5.0 Other ApproachesThe Manual of Patent Office Practice states that business methods are not suitable subject matter for patent.48 An applicant who chooses to approach the patentability of a business method head on will have to challenge this convention at the Patent Office level. Alternatively, or additionally, an applicant can cast their claims in a way that will provide patent protection for the result of the business method, or for a machine or apparatus used to implement the method. For example, while a claim to a method of solving an algorithm as a series of "means plus function" statements will be considered as a disguised method claim protecting a mere algorithm, expressing the method in apparatus claims which recite a tangible component, even something as conventional as a read only memory (ROM), can be sufficient to render the claims patentable in Canada.49 The system claimed in the application at issue in State Street, which included "computer processor means" and "storage means," should be patentable subject matter in Canada for the same reason. Where the business method is one which is most effectively carried out by a computer, claiming it as a system or apparatus would allow for patent protection while still providing some degree of competitive advantage. Similarly, where the business method necessarily effects a physical change in a material object, claiming it as a process will bring it within the conventional heads of patentable subject matter, and the issue of its patentability as a business method per se may become less important. In each case, however, one must be aware of the "professional skills" exclusions - not only is the field of professional skills excluded subject matter in Canada, any element recited in a claim which requires the exercise of professional skill or judgment to implement any invention will invoke the exclusion and render the claim invalid as uncontrollable or unreproducable. [ BACK TO TOP ] Trade secrets are a form of confidential information. Canadian law protects the owner of the trade secret against misappropriation of confidential information,50 however this protection lasts only as long as the information remains secret. A competitor who independently discovers the trade secret is entitled to use it, and to publish it if they wish. In this age of high employee mobility, it can be difficult to keep a trade secret confidential and just as difficult to prove its misappropriation. If a competitor independently discovers the trade secret and successfully patents it, under the provisions of the Patent Act they could in theory stop the earlier user who had not made the invention available to the public before the later user filed their patent application. Accordingly trade secrets, although useful in some situations, are of limited value in others and as such may provide a precarious degree of protection to the proprietor. Copyright protects the actual expression of an author in a literary, artistic, musical or dramatic work.52 It cannot prevent competitors from expressing the same concept in their own way, or from using the concepts so expressed. Also, since copyright is only infringed by actual copying,53 a competitor who independently originates substantially the same expression is entitled to use it freely and holds their own copyright in it. Although copyright can give the owner a head start, by requiring a would-be competitor to recreate materials using their own skill and labour, this type of protection is of limited value in a business method context. Some business owners believe that the name of their business or service provides an inherent competitive advantage, not because of its distinctiveness, but because of the idea it conveys. The recent rash of domain name registrations is in part testament to this perception. Whether or not this is true, this type of protection is typically limited by the restriction against protecting names and trademarks that describe a characteristic of a product or service.54 Such a name, like a "get-up" (for example the appearance of packaging or the decor of a restaurant), must be shown to have become distinctive of the user to the point that its use by others would be likely to deceive prospective customers into believing that the 'owner' is somehow associated with the other user's product, service or business, before a court will confer any rights upon the owner.55 This is a difficult benchmark to meet, and in any event it is at best peripheral protection and cannot prevent a competitor from copying an underlying business method. 6.0 ConclusionThere is presently no clear basis for excluding the patentability of business methods in Canada. Absent imminent legislative reform our courts will inevitably have to face this issue, and the applicability of UK authorities which have in the past been taken as controlling is now doubtful. In the meantime, as there are limited other means for the protection of business methods, unless a business method lends itself to secrecy patent protection should be seriously considered as a means of protecting a novel business method. [ BACK TO TOP ]
* Presented at the Intellectual Property Institute of Canada (IPIC) Fall 2000 Continuing Education Symposium, Vancouver, British Columbia. † Partner of Dimock Stratton, Toronto. With grateful acknowledgement to Pamela Adams for her research and assistance. 1 State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1363, (FCCA, 1998). 5 Citing In Re Bergy, 596 F.2d 952, 960 (CCPA 1979). 9 (2000), 3 C.P.R. (4th) 526 at 533. 13 Progressive Games, Inc. v. Commissioner of Patents (2000), 9 C.P.R. (4th) 479 (F.C.A.). 14 Tennessee Eastman Co. v. Commissioner of Patents, [1974] S.C.R. 111 at 116-117, 120. 15 H.G. Fox, The Canadian Law and Practice Relating to Letters Patent for Inventions, Fourth ed. (1969), at 17. 16 Ciba Ltd. v. Commissioner of Patents (1957), 17 Fox Pat. C. 3 at 10. 17 There is UK authority to the effect that intellectual information is not a vendible product. See NRDC's Application, [1961] R.P.C. 134, cited in Re Slee and Harris's Application, [1966] R.P.C. 194. 18 Re Alliston Curling Club Inc. and Town of Alliston, [1964] O.R. 251 at 253 (Ont.C.A.). 20 One need only look to authorities which discuss the prohibition in s.12(1)(a) of the Trade-marks Act, R.S.C. 1985 c. T-13, against registering a trademark that is "primarily merely the name or surname of a living individual", to appreciate the potential significance of the term "mere" in this context. For example, see Elder's Beverages (1975) Ltd. v. Registrar of Trade-marks (1979), 44 C.P.R. (2d) 59. 26 See Canadian Manual of Patent Office Practice, s. 16.04(d); Re Dixon Application No. 203 (1978), 60 C.P.R. (2d) 105; Re Application of Polnauer (1976), 104 CPOR 40-xii. 28 Canadian Manual of Patent Office Practice, s. 16.04(b). 29 (1981), 68 C.P.R. (2d) 94 at 98. 30 (2000), 6 C.P.R. (4th) 385 (Patent Appeal Board). An appeal is presently before the trial division of the Federal Court of Canada. 32 See for example Patent Appeal Board decisions 1229, 1231 and 1232 (November 3, 1998) which allowed applications respectively claiming devices for processing an input value to provide an output value which is a logarithm of the input value; efficient evaluation of exponential functions; and determining the reciprocal of the jth root of an input value. In each case the claims to the device included a specific piece of computer hardware and were thus allowable because they recited a physical element. 33 G.F. Takach, Patents, A Canadian Compendium of Law and Practice (Juriliber, 1993), at 21. 35 President and Fellows of Harvard College v. Commissioner of Patents (unreported), (2000) 7 C.P.R (4th) 1 (F.C.A.). 38 In Re Coopers Application (1902), 19 R.P.C. 53. 43 (1974), 15 C.P.R. (2d) 255 at 257-258. 45 The Patent Act itself seems to recognize a distinction between and "art" and a "science": See s.27(3)(b), which requires that the specification in a patent application set out the steps in a process or method "in such full, clear, concise and exact terms as to enable any person skilled in the art or science to which it pertains, or with which it is most closely connected, to make, construct, compound or use it." 46 Supra note 2, s.28.2. A similar statutory bar exists in the United States for an invention that has been in public use or on sale for more than one year. 47 Typically publication occurs 18 months after the earlier of the actual filing date or any priority filing date based on an earlier-filed application for the same invention. 48 Supra note 28, s. 16.04(e). 49 Supra, note 32. See also Motorola Application No. 2047731 (1998), 86 C.P.R. (3d) 76 and Motorola Application No. 2085228 (1998), 86 C.P.R. (3d) 71. 50 Dimock Stratton, I Thought of That! A Practical Guide to Patents, Trade-marks, and Copyright, (CCH Canada, 1999), at 34. 51 Supra note 2, ss.28.2(1)(b) and 42. 52 Hutton v. Canadian Broadcasting Corp (1992), 41 C.P.R. (3d) 45 at 47 (Alta.C.A.). 54 See for example s. 12(1)(b) of the Trade-marks Act, R.S.C. 1985, c. T-13. 55 Sport Maska Inc. v. Canstar Sports Group Inc. (1994), 57 C.P.R. (3d) 323 at 345. [ BACK TO TOP ]
|
|
|
|
|
|
||
|
|||
