Use of Electronic Evidence in Patent Act - Canada
Evidence of invention:
In Canada, a patent guarantee can be obtained if the applicants comply with the Canadian Patent Act as well as associated Patent Rules. Priority regarding patent rights is determined on the basis of which applicant first files an application. The Act provides that between two competing applications for the same invention, the one with the earliest claim date is entitled to the patent. Where disputes with regard to priority arise, the facts of the invention process may become relevant during proceedings before the Canadian Patent Office or the Canadian courts. Documents produced by inventors and other scientists assisting the inventors are often introduced into evidence to provide the invention story. The reliability and accuracy of any documentary evidence may be critical to proceedings in the Canadian Patent Office and the Canadian courts.
Discovery of electronic ndocuments:
In the context of electronic documents discovery, they includes an audio recording, video rcording, film, photograph, chart, graphs, map, plan, survey, book of account and data and information in electronic form. Not only does a traditional hardcopy record qualify as a document under the rules but data or information stored in electronic form electronic documents as evidence. Questions of authenticity, integrity and reliability are particularly pronounced when parties seek to tender electronic documents as a evidence.
Uniform statutes:
Concern over these issues, Canadian Uniform Electronic Evidence Act (UEFA) and the Personal Information Protection and Electronic Documents Act (PIPEDA) was drafted by the Uniform Law Conference of Canada (ULCC) in 1998 to adopt "uniform statutes" and permit the introduction of evidence of any standard, procedure, usage or practice regarding the way the documents are recorded and stored to help determine whether the electronic documents tendered for admission should be received as authentic and reliable.
The authenticity of electronic documents can be further bolstered by the use of secure electronic signatures, as defined in Personal Information Protection and Electronic Documents Act (PIPEDA). Under PIPEDA and CEA, the federal government of Canada enacted the Secure Electronic Signature Regulation. The E-Signature regs. are fairly technical in their definitions and implementation, incorporating digital signature certificates, hash functions and asymmetric encryption employing public and private keys. The importance of E-signature in electronic evidence is that when electronic document is signed, the data in the document are presumed to have been signed by the person identified by the digital signature certificate, in the absence of evidence to the contrary.
In conclusion, the relevance and importance of electronic evidence regarding both patent prosecution and patent litigation is that the applications are well-supported and that relevant electronic evidence is admissible in case of allegations of invalidity arise in the context of a patent dispute. The federal and provincial governments of Canada have established the legislative framework that will allow innovators to rely on electronic documents produced during the research and development phase. It will now be upto the Canadian Patent Office and the Canadian courts to provide a modern forum for electronic records as documentary evidence of invention.
Canadian Evidence Act (CEA) provides for the admissibility of electronic evidence where the integrity of the procedures and standards incorporated in an in-hyouse electronic documents system will bolster the weight of electronic evidence. Under CEA, the best evidence rule does indeed apply to computer data but does so without impeding its admissibility. Where the integrity of the electronic documents system is proven, the best evidence rule regarding an electronic docufment is satisfied, in whatever form the electronic evidence takes; for example printout, magnetic hard drive, tape, semiconductor memory, optical storage, etc.
On December 1, 2005, the Canadian General Standards Board (CGSB) released a standard that outlines how to ensure that records generated from electronic information systems are reliable, authentic and trustworthy and is applicable to both electronic records created by an individual and those entered as a result of data interchange without intervention by an individual. The key elements of standard are:
(a) contemporaneous recording of information and data
(b) routine business data and data entry
(c) reliance on the information and data by the organization
(d) software reliability
(e) processing verification of data and information as well as security and protection against unauthorized access to data and information
(f) maintaining backup copies and proper retention and disposition of electronic data.
If an organization can demonstrate to the court that its electronic docum,ents system implements these standards, it is anticipated that any electronic documents recorded or stored deemed admissible on account of the proven integrity of the storage system and the court will extend the appropriate weight to the evidence on the basis of integrity and reliability.
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