Commissioner Not to Be Named as a Party in Appeals from Refusal of Application

Blair v Attorney General of Canada, 2014 FC 861 Strickland J
            Application 2,286,794 / “SUBWAY TV MEDIA SYSTEM”

The ‘794 application claims a subway car with video screens mounted at the junction of the sidewall and ceiling [6]. The Commissioner rejected the claims as being obvious, and Strickland J, applying a deferential standard of review to the Commissioner’s application to the facts of the (correct) obviousness test, affirmed.

The most interesting aspect of this decision is Strickland J’s holding that the Commissioner should not be named as a respondent in the appeal [42]. This seems to be a departure from past practice, though as Strickland J pointed out, in cases such as Harvard College v Canada (Commissioner of Patents), 2002 SCC 76, and The Attorney General of Canada and The Commissioner of Patents v Amazon.com, Inc 2011 FCA 328, the issue of the Commissioner being named as a party does not appear to have been disputed [49]. I don’t have a good sense of what the practical implications of this holding will be, but it was Attorney General which sought to have the Commissioner removed, so presumably the government is satisfied that it can properly conduct such appeals without the participation of the Commissioner.