Amici Curiae: The Hockey Hitting, Tackling Judge, Waiting for an Inquiry Edition

U.S. Patent Reform Is Near

On Tuesday, the United States Senate overwhelmingly approved a patent reform bill by a 95-5 vote. The bill still needs to be passed by the House of Representatives before it can be enacted. If approved, the bill will represent the first significant changes to the U.S. patent system in nearly 60 years.

The bill implements a “first-to-file” system, allows the Patent Office to set its own funding, and provides an expedited review process that would guarantee a decision on the patent application within one year of filing (the average review time is three years at the moment). These measures are implemented with the goals of improving the quality of granted patents, enhancing the efficiency of the USPTO, and bringing itself in line with the global standard of innovations.

The most controversial change under the measures is replacing the U.S.’s “first-to-invent” standard with a “first-to-file” system.  Under the “first-to-file” system, the inventor who files the application with the USPTO first would be granted patents instead of the person who claims he or she made the invention first. This change will bring U.S. patent law in line with that of most other patent systems in the world, including Canada’s patent law.

President Obama supported the Senate bill, saying, “This long-overdue reform is vital to our ongoing efforts to modernize America’s patent laws and reduce the backlog of 700,000 patent applications — which won’t just increase transparency and certainty for inventors, entrepreneurs and businesses, but help grow our economy and create good jobs.”

The change to a “first-to-file” patent application inherently favours large companies that have the resources necessary to file patents as fast as possible. It is not surprising that a number of large companies, including Caterpillar Inc., 3M Co. and General Electric Co., formed the Coalition for 21st Century Patent Reform to push for the overhaul bill, while small companies or individual inventors appear to oppose this bill as they cannot afford the cost or time for filing patent.

The American Innovators for Patent Reform, led by General Patent Organization’s Alexander Poltorak, said that such a change would “create a race to the patent office and put small inventors at a disadvantage…It is going to create very immature, raw patent applications because people are going to be in a rush to file them without due experimentation and working prototypes.”

The number of patent applications will continue to rise exponentially in this innovation powerhouse. Thus, it is critical for the U.S. Congress to act accordingly in order to provide the resources necessary for the USPTO to issue quality patents efficiently while encouraging innovations and protecting innovators.

Hockey (in)justice

Does the criminal justice system have a role in regulating violence in NHL hockey? This is a hotly debated topic in our first-year criminal law class. While some students agreed that hockey players consented to physical contact once they stepped on to the rink, some students argued that the players did not consent to such life-threatening and permanent injuries.

On March 8th, during a NHL hockey game, Zdeno Chara hit Max Pacioretty into a glass stanchion. Pacioretty immediately suffered from a concussion and a fractured vertebra. Chara is not facing suspension. The hit could be viewed here.

As would be expected, Montreal fans are livid. And as Habs owner Geoff Molson demonstrated with a public letter, they are not alone. The fallout goes farther than the traditional hockey community, however. For one, the Montreal police force has announced its intention to conduct a criminal investigation into the hit.

The hit also garnered the attention of politicians on both sides of the Canadian-American boarder as well. In Canada, the issue was raised in question period, and widely commented on outside of it. In Washington, D.C., where Gary Bettman was already scheduled to attend a congressional panel on encouraging American kids to get into hockey, the league commissioner spent much of the session on the defensive, reminding legislators of the NHL’s relatively proactive stance on the issue of headshots and player safety.

Air Canada, one of NHL’s biggest sponsors, is threatening to withdraw its sponsorship if the NHL does not take action to “protect both the players and integrity of the game.”

“From a corporate social responsibility standpoint, it is becoming increasingly difficult to associate our brand with sports events which could lead to serious and irresponsible accidents; action must be taken by the NHL before we are encountered with a fatality.” Air Canada director of marketing and communications wrote in the letter to the NHL.

Prime Minister Stephen Harper also weighed in on hockey violence, saying the league needs to take a serious look at the issue “for its own sake.” Tim Hortons, with its spokesperson Sidney Crosby out for two months with a concussion, also raised concerns about the violence that is happening. Montreal police are now investigating whether Chara’s hit warrants criminal charges.

Despite the paramount concerns, NHL commissioner Gary Bettman said it is all “part of the game” and there is no need to “over-legislate” head hits. He is also unconcerned about Air Canada’s sponsorship.

While Pacioretty suffered from life endangering injuries, it is unlikely that Chara would be charged. The NHL has been ignoring the substantial amount of evidence that players cannot police nor protect themselves during the game, putting hockey players at risk without enacting any concrete implementations. The severity of the injuries cannot be ignored and the NHL needs to take an active stance addressing this problem.

As for this commentator’s opinion on the decision not to assess further discipline, it is difficult to see how the hit was not warranting of a suspension. Although there appeared to have been no malicious intent on the part of Mr. Chara, it was, nonetheless, an illegal play (interference, possibly boarding). Is it unreasonable to suggest that an illegal play which results in (in this case, severe) injury is only deserving of a five minute power play (note – Chara himself was ejected from the game)? That being said, the NHL is well aware of the importance of player safety, and is equipped to handle the challenges associated therewith. Rink management throughout the league, one would hope, is also looking at how turnbuckles can be padded to provide the maximum degree of protection in the future. Still, and as evidenced by Commissioner Bettman’s presence on Capitol Hill, this is a dark day for a sport which is in a constant struggle to maintain and enhance its legitimacy and popularity in the American market. In the meantime, here’s to a speedy recovery for Max.

London Judge Knocked Down Sex Offender

Hockey fights could be terrifying – but rugby-tackling by a London Judge has helped to keep a criminal in jail.

A 60-year-old London judge, in his robe and wig, rugby-tackled a 34-year-old sex offender to the floor to stop him from fleeing his own trial at the Woolwich Crown Court in London.

Paul Reid, convicted of sexual assault, tried to escape from his trial. The only doors that were open in the court room, are those ones to the judge’s corridor. The jury were just leaving when the defendant jumped up and ran across the clerk’s bench to get to the door. This is when Judge Marks Moore, a former Irish Guard, grabbed him round the throat and they fell down together. Reid broke free but just as Reid was about to open the door, Judge Moore rugby-tackled him around the waist and brought him crashing to the ground, landing on top of him.

Reid had two sexual assault convictions and he should be jailed with a minimum term of six years and three months.

On Top of the World by More than a Slim Margin

Forbes’ “Rich List” has named Carlos Slim Helú the world’s wealthiest person for the second year in a row. Trailing him are Bill Gates, Warren Buffett, Bernard Arnault, and Larry Ellison. Slim, the chairman and CEO of Latin America’s biggest telecommunications company América Móvil, has an estimated net worth of $74bn.

The youngest member of the billionaire club is Dustin Moskovitz at 26. He is joined by fellow Facebook billionaires Mark Zuckerberg, Sean Parker, Eduardo Saverin, Peter Thiel and Yuri Milner. For an interesting perspective on how the list stacks up to the U.S. deficit, click here.

In response, the National Post came out with a Canadian edition. Topping the list was David Thomson, chief executive of media empire Thomson Reuters.

Stelmach Calls for Health Care Wait Time Inquiry

After initially denying allegations that the Albertan government had covered up the deaths of 250 cancer patients as wait times exploded in the provincial health care system, Alberta Premier Ed Stelmach seems to have had a change of heart. Though the Health Quality Council of Alberta, Alberta Medical Association and Calgary and Area Physicians Association had all been pushing for an inquiry, it was outspoken MLA Raj Sherman’s accusations that the government had paid millions to cover up the deaths that garnered the most media attention.

In spite of – or perhaps, in light of – these accusations, Stelmach has mandated that the Inquiry deal solely with the issue of wait times, and not get into the possible cover up.

Although it is not determinative given that it was ultimately decided based on the Quebec Charter of Human Rights and Freedoms, the Canadian Supreme Court in the 2005 decision Chaoulli seemed to endorse the position that unreasonable hospital wait times combined with provincial prohibitions on the purchasing of private insurance violates the Canadian Charter’s section 7 right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Given demographic trends (namely aging, retiring baby boomers), the issue of wait times in the public system throughout Canada is likely to become a major issue in the next decade. According to a TD report released this summer, healthcare spending will make up 80% of the Ontario provincial budget by 2030 if it continues on its current trajectory. Thus, while Stelmach’s decision to call an inquiry may be in response to a specific incident, his fellow premiers would be wise to consider inquiries of their own so as to start coming up with solutions to this problem before it reaches epidemic proportions.

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