Law Times

Law Times • January 30, 2012 NEWS PAGE 3 BY KENDYL SEBESTA Law Times Conservative party, an analysis of Elections Canada data reveals. As Law Times reported last week, the T government has named several judges who had either been candidates for the party or campaign workers or volunteers for the Conservatives or their provincial cousins. Justice Thomas McEwen of Pickering, Ont., for example, donated nearly $948 to the Conservatives on Mar. 1, 2008. Nearly a year later, the government appointed him to the Ontario Superior Court. Justice Caroline Brown of Hamilton, Ont., donated $1,000 on Jan. 16, 2009, to the Conservatives. Five months later, she joined the Superior Court in that region. Justice Michael Parayeski, also of Ham- ilton, gave $500 to the governing party on May 13, 2009. One month later, the govern- ment made him a judge. Meanwhile, Justice Brian Abrams in Kingston, Ont., made a $227 contribution to the Conservative party in June 2009, ac- cording to Elections Canada data. Appoint- ed last year, he had previously been the Con- servative party candidate for his local riding. Law Times contacted all of the judges it found had made donations before their ap- pointments last year to give them an oppor- tunity to comment. None of them chose to do so. Despite the donations, former justice he federal government appointed 11 judges to the Ontario Superior Court last year who had recently made donations to the governing minister and current Liberal MP Irwin Cotler warns that campaign contributions to either a governing Liberal or Conservative party don't necessarily lead to judicial ap- pointments. "I have examined merit-based appointments and assume that all appoint- ments are made based on merit," said Cotler in an email to Law Times. Still, other Liberal MPs have made allegations of patron- age against the Conservative government and Prime Min- ister Stephen Harper in recent months. "From judges to nuclear safety commissioners, they all have one thing in common, direct ties to the Conservative Party of Canada," said Liberal Leader Bob Rae in a press release this month about the government's recent Senate appoint- ments. "Just since the 2011 election, over a hundred Conservative friends have been re- warded by Harper with high-paying jobs." Rae added in his press release that the government should be basing appointments on merit rather than contributions or insider status. "This is the same Stephen Harper who told Canadians that patronage has no place in the Parliament of Canada, and that he had no intention of making partisan appointments," said Rae. "He broke that promise. Canadians think the appointment process should be based on merit, not insider status." But a look at contribution data from Elections Canada shows the Liberals had also appointed several judges who 'I have examined merit-based appointments and assume that all appointments are made based on merit,' says Irwin Cotler. contributed money to the party during their time in office. In fact, a 2007 Univer- sity of Guelph study looking at judicial ap- pointments and political patronage found that of the 978 judicial appointments be- tween 1988 and 2003, at least 30 per cent involved people who had made donations to the governing party. The study found similar results for former Progressive Con- servative prime minister Brian Mulroney's government as well. The result, the Canadian Bar Associa- tion argued in a 2005 review of the federal judicial appointments process in Canada, is a negative perception of the system. "Canadians expect, and are entitled to have, judges who are well qualified and in- dependent of political influence," the CBA review stated. "If judicial candidates were intimately involved in the political sphere Patent law changes U.S. moves to first-to-file system BY DARYL-LYNN CARLSON For Law Times T he United States is changing its patent law in 2013 to become a first-to-file jurisdiction rather than emphasizing ap- plications based on the first- to-invent approach. The change received leg- islative approval in Septem- ber under the Leahy-Smith America Invents Act. The revision, which will take effect in March 2013, will serve to harmonize the U.S. patent system with the rest of the world. Noel Courage, a partner at Bereskin & Parr LLP in Toronto, says that while there has been some discussion among lawyers and inventors that Canada could become the country of choice to file an ini- tial patent application, the size of the U.S. market means businesses are likely to look there first. "When a company wants to 'When a company wants to meet with potential investors, they know that the U.S. is the biggest market,' says Noel Courage. biggest court judgments in patent infringement cases," he adds. Courage notes that as Europe, meet with potential investors, they know that the U.S. is the big- gest market," he says. "I would say that there's a lot of talk out there and I think the U.S. is still the country of choice for patents as it's got the biggest market, the biggest pool of po- tential investors, and by far the Canada, and Australia have first-to- file rules, "the U.S. doing a harmo- nization initiative by implementing the first-to-file rule does provide more certainty for companies." When two inventors file ap- plications for patents for the same thing, there could be a hearing at the board of patent appeals and interferences at the United States Patent and Trademark Office to determine who was the first in- ventor. The first-to-file premise is very basic and simple and can be less costly for small and independent inventors, says Courage. But a benefit of the U.S. sys- tem was the 12-month grace period for the public disclo- sure of the patent development. That gives small developers time before applying for a pat- ent and, therefore, can save them money. Under the first-to-file amendment, large companies will have an advantage in fil- ing their patents with the help of their in-house lawyers, while small and independent inven- tors may not have the same re- sources to affirm their invention if a competitor challenges them. According to Courage, how- ever, it's important for the United States to harmonize its patent laws with the rest of the world. Still, he acknowledges it'll be a significant change for inventors, especially those who are independent. Any challenge to a patent costs money, but ultimately it can be a small price to pay for the overall changes that bring the United States in line with the rest of the world, says Courage. Javad Heydary of Heydary Hamilton Professional Corp. in www.lawtimesnews.com Toronto agrees it's a beneficial step for the United States to bring itself in line with other countries. "Patents are always valuable as- sets for a country, although there has been a lot of patent litigation in any country," he says. Heydary points out that the matter of Microsoſt Corp v. i4i Ltd. Partnership, which went to the Su- preme Court of the United States in the summer of 2011, addressed the issue of patent invalidity. In the end, the court ordered Microsoſt to pay $290 million for infringing on a patent of Toronto-based i4i. The high-profile case was note- worthy in the context of the new law and will clarify the rules, says Heydary. He notes the United States could have some interesting cases when the new law comes into ef- fect in 2013. "It will be very interesting to see what happens when the new law comes into effect," Heydary says. LT close to the time when they were appointed, public percep- tion of patronage is heightened and judicial independence suf- fers through the 'politicization' of the relationship between the judiciary and the branches of government." In the meantime, the CBA review added, the govern- ment should consider other alternatives before judges who have contributed to po- litical campaigns in the past join the bench. They include a cooling-off period between political activity and a judicial appointment. "Justice thrives when it is ad- ministered in an open and transparent fash- ion and withers when it operates in secret according to the dictates known only by the few," the review concluded. "Especially in an era where judges are commonly confronted with fundamental questions relating to the privacy, security, and equality of Canada's citizens, and how to resolve conflicts between these principles, it is critical that the judicial appointment pro- cess is open to public scrutiny, maintains the high quality of judicial appointments, and protects judicial independence, to ensure the legitimacy of such critical decisions." The federal Justice department referred all questions about the issue of patronage and judicial appointments to the provin- cial Ministry of the Attorney General. The ministry said it had no comment on the issue. LT T ories appointing party donors as judges But former justice minister says merit drives the process

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