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In Canada, like the USA, exclusions to patentable subject matter are driven primarily by the courts. Two recent decisions by the Canadian Patent Appeal Board (one on patentability of business methods and the other on the patentability of methods of medical treatment) have highlighted the inherent difficulty of crafting exclusions to patentable subject matter grounded not on legislative intent but on judicial activism.Courts, patent examiners, and the patent appeal board should be slow to deny patents where their subject matter is considered ineligible; rather patent applications should be assessed by the traditional criteria of patentability (namely, novelty, inventiveness, and utility). If the subject matter can be made to fit within the definition of ‘invention’ (even if slightly uncomfortably), the courts should aim to ‘breathe life’ into the bare, sometimes dated, words of the patent statute. Since the patent statutes are drafted with a view to the unforeseen, any judicial interpretation of the word ‘invention’ must give deference to this vision. A theory of subject-matter eligibility is also proposed.
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AbbVie Biotechnology Ltd v Canada (Attorney General) 2014 FC 1251 Kane J 2,385,745 * – anti-TNF-α antibodies / HUMIRA dosage regime Ka...
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Novartis v Cobalt / zoledronate (NOC) 2014 FCA 17 Sharlow JA: Webb, Near JJA aff’g 2013 FC 985 Hughes J 2,410,201 – ACLA...
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This article examines, from the standpoint of corrective justice, three basic situations of causal uncertainty in the law of negligence. In the first situation the uncertainty is about which of the possible defendants wrongfully caused the injury. In the second situation the uncertainty is whether the injury resulted from the innocent or the wrongful aspect of the defendant’s activity. In the third situation the uncertainty is whether the defendant’s negligence failed to prevent the materialisation of an independently existing risk. In viewing the parties as the doer and the sufferer of the same injustice, corrective justice confirms the centrality of causation to negligence liability. The article shows, nonetheless, how these three situations of uncertainty can be resolved within the corrective justice framework. Moreover, what emerges from the corrective justice analysis is that causal uncertainty is not a homogeneous problem; its solution varies with the kind of situation in which the uncertainty appears.
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Polls have had a number of high-profile misses in recent elections. We review the current polling environment, the performance of polls in a historical context, the mechanisms of polling error, and the causes of several recent misses in Britain and the US. Contrary to conventional wisdom, polling errors have been constant over time, although the level of error has always been substantially beyond that implied by stated margins of error. Generally, there is little evidence that voters lying about their vote intention (so-called ‘shy’ voters) is a substantial cause of polling error. Instead, polling errors have most commonly resulted from problems with representative samples and weighting, undecided voters breaking in one direction, and to a lesser extent late swings and turnout models. We conclude with a discussion of future directions for polling both in terms of fixing the problems identified and new approaches to understanding public opinion.
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This article reviews Canadian cases involving claims for misfeasance in a public office that have been decided since the Supreme Court of Canada’s decision in Odhavji Estate v. Woodhouse. Three main trends are apparent. First, plaintiffs who claim in misfeasance have some procedural advantages, including an expanded scope of discovery and greater resistance to defendants’ motions to strike. Second, the misfeasance tort serves an “ombudsman” function, tainting the defendant’s conduct as abusive and providing a greater degree of psychological vindication to plaintiffs. Finally, in some limited circumstances, misfeasance claims may have a better chance of success than negligence claims, as they dispense with the somewhat troublesome requirements of proximity and policy.
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"L'objet principal du présent ouvrage est de susciter la réflexion au sujet de l'aménagement linguistique tel qu'il a été vécu au Nouveau-Brunswick, seule province officiellement bilingue au Canada. L'auteur cherche à mettre en lumière l'effectivité des droits linguistiques ainsi que le rôle qu'exercent le législateur et les tribunaux en ce domaine. En outre, il fait ressortir la nécessité de l'action en justice afin de faire respecter des droits qui sont de nature constitutionnelle et quasi constitutionnelle".--Résumé de l'éditeur
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A History of Law in Canada is an important [anticipated] three-volume project. Volume One begins at a time just prior to European contact and continues to the 1860s, Volume Two covers the half century after Confederation, and Volume Three will cover the period from the beginning of the First World War to 1982, with a postscript taking the account to approximately 2000.The history of law includes substantive law, legal institutions, legal actors, and legal culture. The authors assume that since 1500 there have been three legal systems in Canada – the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods. The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated or mediated intercultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including land settlement and tenure, and family, commercial, constitutional, and criminal law. -- Adapted from publisher's description.
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