Justice Rothstein will become the first Supreme Court nominee subjected to public questioning by a House of Commons committee. Previously, Supreme Court judges were appointed without any public scrutiny. The new procedure will not provide any specific powers to the House to reject nominations and thus Justice Rothstein is assured of the position. The public process will consist of a three hour televised session which will probably be conducted quite soon.
The appointment is notable for several reasons, apart from interest in the new appointment process. For IP practitioners, it may be an opportunity to have more IP appeals heard by the Court. As in the United States, the Supreme Court controls its docket and only rarely accepts IP-related matters. The presence of a judge with a demonstrated interest in patents and trademarks raises the hope that more such cases will be heard.
During his years on the Court of Appeal he participated in nearly every important intellectual property decision heard by the Court. Importantly, his reasoning in the Harvard Mouse case suggests a strong pro-patent leaning. This will be important if and when questions such as the scope of business method patents are presented to the Court. The Court will no doubt be asked to face many pharmaceutical patent issues, and we will be waiting to see how many of these are accepted.
To discuss this topic further, please feel free to contact the author, Marcus Gallie (firstname.lastname@example.org), at Ridout & Maybee LLP (www.ridoutmaybee.com), Ottawa, Canada.
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