By Kay Palmer and Alexandra Mazgola, May 15, 2024

Securing intellectual property (IP) rights is a critical step for businesses, particularly for start-ups and small or medium-sized enterprises (SMEs), who want to gain a competitive advantage in the marketplace. To assist in funding IP-related costs, various government funding programs have been developed across Canada to help companies secure IP rights.

Below are some common funding programs available across Canada.

Elevate IP:

ElevateIP is a federal program delivered Canada-wide through selected business accelerators and incubators (BAIs) in collaboration with regional partners to help start-ups develop and implement IP strategies, in addition to offering IP education services.

While eligibility requirements and funding amounts vary depending on the BAI administering the program, start-ups may be eligible for up to $100,000 to develop and implement an IP strategy. Most BAIs require, at a minimum, that the start-up have less than 500 employees and be headquartered in the geographic region of the BAI administering the program. The program funding is divided into 3 tiers:

1. IP Education & Awareness

2. IP Strategy Development

3. IP Strategy Implementation

The selected BAIs in different provinces are listed below:

• Springboard Atlantic Inc.– for Newfoundland and Labrador, Nova Scotia, New Brunswick and Prince Edward Island
• Mouvement des accélérateurs d’innovation du Québec (MAIN) – for Québec
• Communitech with Invest Ottawa, Launch Lab, and Spark Centre – for Ontario
• North Forge – for Manitoba and Saskatchewan
• Innovate Calgary & Economic Development Lethbridge – for Alberta
• New Ventures BC Society with AccelerateIP – for British Columbia, Yukon, Nunavut and the Northwest Territories

To learn more about the Elevate IP program, please click here.

IP Assist (IRAP):

IP Assist, administered by The National Research Council of Canada Industrial Research Assistance Program (NRC IRAP), is a tiered national funding program designed to support SMEs' IP efforts. Under the IP Assist Program, SMEs can receive support and funding across three different levels:

• L1 – IP Awareness
• L2 – IP Strategy
• L3 – IP Action

The funding available for IP Strategy and IP Action ranges from $10,000 to $25,000 for each, with an additional $1,000 for IP awareness. To learn more about the IP Assist program, please click here.

Intellectual Property Ontario (IPON):

IPON is a provincial-run program that provides support to Ontario-based SMEs operating in one of IPON’s served sectors – MedTech, life sciences, artificial intelligence, vehicle technology, and mining and advanced manufacturing – to promote innovation and growth in these highly desired sectors in Ontario. Once the SME is enrolled as an IPON client and is part of IPON’s IP Bootcamp or Partner Program, it may be eligible for up to $35,000 in initial funding for IP protection and commercialization services and have potential access to future IP funding of up to $100,000. It’s important to note that the SME has to cover 20% of IP service costs directly, and IPON covers 80%. To learn more about the IPON program, please click here.

Innovation Access Collective (IAC):

IAC is a membership-based not-for-profit organization funded by the Government of Canada to assist Canadian SMEs in the data-driven CleanTech sector with IP-related needs. Full members may be eligible for grant funding ranging from $5,000 to $20,000, while associate members may be eligible for grant funding ranging from $5,000 to $10,000. In addition, IAC also has a Grant for Women in IP created in response to the demonstrated inequitable gender balance in the IP ecosystem. To learn more about the IAC program, please click here.

CanExport Innovation:

CanExport Innovation provides funding for intellectual property protection in international markets and other related services for Canadian SMEs looking to expand into international markets to develop R&D collaborations through partnerships in foreign markets. Businesses may be eligible for funding of up to $75,000 to assist with research and development (R&D) for a single technology. To learn more about the CanExport Innovation program, please click here.

Eligibility requirements and application process:

Please note the information presented in this article represents only a general outline and the above programs are subject to specific eligibility requirements that are listed on their respective websites that are linked above. For more information, please reach out to an MBM professional who can assist you in determining the best funding program for your business and assist you through the application process.

While some of the above programs accept applicants on a “rolling basis”, other programs require applicants to apply to open calls subject to strict deadlines. We strongly encourage businesses looking to apply to consult the program websites linked in this article for further information regarding eligibility criteria, program application process and deadlines.

MBM is an approved service provider for ElevateIP, IP Assist, and IPON.

If you would like to learn more or require any advice, please contact:

Kay Palmer, Ph.D., Senior Patent Agent
T: 613.801.0452
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By Scott Miller and Deborah Meltzer, September 21, 2023

If you sell products or have public signage in the Province of Québec, then please consider what changes, if any, will be necessary to the product inscriptions/packaging and signage to ensure compliance with the amendments to the Charter of the French Language, c-11, which will come into force on June 1, 2025.

To assist with your review, MBM has prepared the following flow charts:

MBM has developed creative solutions to minimize product inscriptions/packaging and signage changes and yet still be in compliance with the amendments to the Charter of the French Language, c-11, which will come into force on June 1, 2025. The flow charts are provided only as a general guide based on known amendments to the Charter of the French Language, c-11. Future amendments or regulations may impact the information provided above.

By Randy Marusyk and Alexandra Mazgola, August 22, 2023

The Canadian Intellectual Property Office (“CIPO”) has announced that effective January 1, 2024, most official fees will be increasing by 25%. On the patent side, the increase in the fees will be applicable to standard entity size. At the same time, the definition of “small entity” in the Patent Rules will be broadened from the current 50 employees to fewer than 100 employees, which would mean that more companies can fall into the small entity category and thus utilize the lower official fees. Canada remains an important jurisdiction in North America for IP filings and is further reinforced by rapid population growth, surpassing the 40 million mark in 2023. The above changes are detailed below with some recommendations for saving on official fees.

Significant CIPO Fee Increase

Effective January 1, 2024, a one-time 25% fee increase will be implemented, impacting most patent, industrial design, trademark and copyright fees. With respect to patent matters, this increase will not apply to businesses qualifying as a “small entity” under the Patent Rules. Thus, small entity patent applicants will only experience CIPO’s regular annual fee increase in 2024.

Below are a few examples of changes in CIPO’s fees (rounded up):

A complete listing of fee increases relating to patents, industrial designs, trademarks, copyrights, and other fees can be found on CIPO’s website here.

Expansion of the definition of “Small Entity” under the Patent Rules

Another important change is the broadening of the definition of “small entity” in the Patent Rules. This change is important because entities that meet the definition of small entity and who submit a small entity declaration are entitled to a 50% reduction of some CIPO patent-related fees.

Currently, a “small entity” is defined as a university or an entity that employs 50 or fewer employees at the time the patent application was filed or at the national phrase entry date for an international PCT application, but does not include:

(a) an entity that is controlled directly or indirectly by an entity, other than a university, that has more than 50 employees, or

(b) an entity that has transferred or licensed, or has an obligation other than a contingent obligation to transfer or license, any right or interest in a claimed invention to an entity, other than a university, that has more than 50 employees

The definition of “small entity” will be amended effective January 1, 2024, to increase the maximum number of employees from 50 employees to fewer than 100 employees. Thus, more companies will be able to qualify for the small entity category and, as a result, utilize the lower small entity fees. Please note that small entity status is determined at the time of filing (or at the national phrase entry date) and is only determined once.

This amendment does not entitle newly qualifying small entities to a partial refund of fees paid before January 1, 2024. The amendment is, however, allowing applicants who had more than 50 employees but less than 100 employees at the time of filing (or at the national phrase entry date) to start paying future fees at the small entity rate after January 1, 2024, provided all other small entity conditions were met when the patent was filed, and a small entity declaration is submitted.

Recommendations

1. As a result of these changes, individuals and businesses are encouraged to review their IP portfolios with their IP professional for possible new filings, examination requests and renewal/maintenance fees that can be done before January 1, 2024, to take advantage of the lower 2023 rates before the 25% increase takes effect.

2. Additionally, applicants should also review with their IP professional whether they will qualify as of January 1, 2024, for the expanded small entity status.

January 13, 2023

With great pleasure, we would like to announce that Dr. Poonam Tauh has been promoted to Partner.

Prior to joining MBM, Poonam earned a Ph.D. in organic chemistry from the University of Ottawa in 2001 and now has over 20 years experience as a Patent Agent.

Poonam moved to Calgary in 2012 to establish MBM’s Calgary office and has subsequently grown the office into a successful and vibrant MBM outpost in Western Canada to better serve our clients in the Alberta region.

“Poonam is an integral part of our MBM team. In addition, to her exceptional technical knowledge, her clients love working with her because of her calm nature and willingness to always go the extra mile. And, no matter how busy she is, her colleagues know they can always count on her for guidance and support. Poonam is a tremendous asset to our firm”, said Randy Marusyk, Co-Managing Partner.

To learn more about Poonam, check out her full bio here.

Poonam Tauh, Ph.D., Partner, Patent Agent
T: 403.800.9018
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By Scott Miller and Deborah Meltzer, August 24, 2022

On August 15, 2022, the Federal Court of Canada issued its decision with respect to costs in Dragona Carpet Supplies Missisauga Inc. v Dragona Carpet Supplies Ltd and Flooreno Building Supplies Inc., 2022 FC 1200, ordering one of the highest lump sum costs ever awarded in a trademark dispute, representing 50% of aggregate fees incurred, plus disbursements.

The decision was the culmination of a factually complicated family dispute related to the right to use and own the trademark “DRAGONA” in specified pockets of the GTA. The Defendants/Plaintiffs by Counterclaim were wholly successful in (1) defending against the Plaintiff’s motion for summary trial with respect to its claim of passing off, and (2) their own motion for summary trial with respect to their claim for expungement of three of the Plaintiff’s registered “DRAGONA” trademarks.

Ultimately, the Federal Court preferred the evidence of the Defendants. Although there was disagreement on the majority of the facts presented throughout the proceedings, the parties unequivocally agreed that the Defendant, Dragona Carpet Supplies Ltd., was the first to use the trademark DRAGONA. Based on the evidence, there was no basis for the Plaintiff to argue that it was entitled to the trademark registrations. In granting an exceptional lump sum cost award of 50% to the Defendants, the Court emphasized that in light of the facts, the Plaintiff ought never to have maintained the legitimacy of the trademark registrations, much less, waited until the commencement of the hearing to abandon its position.

This precedent-setting decision not only expanded the law on concurrent-use passing off and care and control in the context of a license, but further substantiates the Federal Court’s recent trend of opting for lump sum cost awards in lieu of the tariff, which represents a more reasonable and realistic recovery of legal fees for the successful party.

By Scott Miller and Grace Wang, June 24, 2022

In approximately three years or less, the Québec Government’s newly adopted Bill 96, An Act respecting French, the official and common language of Québec will go into force. Bill 96 will have a significant impact on the use of English trademarks in the Province of Québec. For example, whereas in the past, both unregistered and registered trademarks did not need to be translated into French, under Bill 96, only registered trademarks will be exempt from translation into French. Currently, it takes approximately two years for a trademark application to mature to registration in Canada. As such, it is imperative businesses review their trademark portfolios and consider which trademarks ought to be filed for registration to ensure continued use in the Province of Québec.    

The Present Rules in Québec:

Promotional Material - Packaging

At present, a “recognized trademark” is exempt from translation requirements in Québec. A recognized trademark includes a registered trademark, an applied-for trademark with a pending application, or a common law trademark. As such, unless the English trademark has been registered in French, it is not necessary to translate the English trademark registered or common law (unregistered) on packaging offered in Québec into French.

Signage

Currently, in Québec, outside signage, inside signage that is seen outside, mall signage and/or signage on a pole/column (with some exceptions) displaying an English registered or common law (unregistered) trademark does not need to be translated into French. However, if the equivalent French trademark is a registered trademark, then the French trademark must be used on the signage. In any event, if there is only an English trademark, unlike packaging or promotional material, the signage must have “sufficient presence” in French and include:[1]

•  A generic term or a description of the products or services;

•  A slogan; or

•  Any other term or indication favouring the display of information pertaining to the products or services to the benefit of consumers or persons frequenting the site (location).

The “sufficient presence” of French means that it should be displayed with permanent visibility and legibility in the same visual field as the non-French mark, although not necessary to be present side-by-side, in the same number, in the same materials or in the same size.[2]

Exception: If the English trademark is displayed on a pole/column and there are more than two trademarks on the pole/column then the signage does not need to disclose the generic term, slogan or other terms in French.  The typical situation would be the external signage of the parking lot entrance for an outdoor mall.[3]

Bill 96 – New Requirements in Québec for French in Trademarks:

When Bill 96 goes into effect, the scope of the “recognized trademark” exemption is greatly reduced.

First, only non-French registered trademarks will be exempt and not need to be translated into French. As such, an unregistered (i.e., applied-for or common law) English trademark will need to be accompanied by its French equivalent on commercial advertising and public signage.

Second, even if a non-French trademark is registered but is used on public signs and posters visible from the outside of a premise, the signage must still have a generic term, slogan or other term in French marked predominately in French.[4] Predominantly means that the space allotted to the French text must be at least twice as large as the space allotted to the non-French text, or the characters used in the French text must be at least twice as large as those used in the non-French text.[5]

Implications of the New Québec Language Laws:

It is expected that the newly adopted Québec language laws will be in force in three years or less.  Currently, it takes approximately two years for a trademark application to mature to registration in Canada. As such, if you offer goods and/or services in Québec and do not want to run afoul of the new Québec language laws, then it is imperative for you to review your trademark portfolios and consider a tailored solution to meet your business goals (for example, filing trademark applications with the Canadian Intellectual Property Office immediately).

Notably, these implications may not only affect English language trademarks but also trademarks using other non-French languages and potentially “coined” words.

For more information please contact:
Scott Miller, Co-Managing Partner, Head of the Litigation Department
T: 613.801.1099
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By Claire Palmer, June 10, 2022

Canadian Intellectual Property Office (CIPO) just announced that the new amendments to the Canadian Patent Rules to ‘streamline examination', including excess claim fees, will be coming into effect on October 3, 2022. The changes will include a $100/per claim fee for applications with more than 20 claims and a fee for continued examination after three office actions equal to the original examination fee. The amendments also add steps such as 'notice of conditional allowance'.

As a result of these changes, we advise our clients to review their patent portfolios to determine which patents have over 20 claims and request examination for these patents before the October 3, 2022 date to avoid paying the access claim fees, as they would apply at the examination stage after this date.

We will follow up this announcement with more comprehensive coverage of the new changes to Canadian Patent Rules - stay tuned!

For more information please contact:

Claire Palmer, Ph.D., Senior Patent Agent
T: 613.801.0450
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This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.

By Claire Palmer & Carly Horvath, May 17, 2022

Canada’s Patented Medicine Prices Review Board (PMPRB) is a quasi-judicial body that has authority under the Patent Act to protect and inform Canadians “by ensuring that the prices of patented medicines sold in Canada are not excessive and by reporting on pharmaceutical trends”.[1]

Two recent decisions[2] from Canadian appellant courts surrounding the scope of the PMPRB’s authority under the Patent Act represent victories for the pharmaceutical industry, sending a strong signal that the PMPRB does not have the jurisdiction to consider consumer protection or general regulations of drug pricing in its determination of “excessive” pricing.

In response to these recent appellant decisions, the Canadian Minister of Health announced in April that there will be “a new and different set of guidelines” prepared for consultation in the coming months. Notably, these amendments will not include the proposed economic regulatory factors for drug pricing nor the net price disclosure requirements held to be unconstitutional by the Quebec Court of Appeal.[3] The Minister of Health also stated that Health Canada will be implementing the “new basket of comparator countries” as an amendment to the Patented Medicines Regulations, which will come into force on July 1, 2022.[4] This amendment removes the US and Switzerland and adds Japan, Norway, Belgium, Australia, and the Netherlands as comparator countries.[5]

Importantly, while rights holders will need to begin reporting price information in accordance with the new comparator countries beginning on July 1, 2022, there will be a temporary period during which no guidelines will be in effect. During this period, the PMPRB will be holding expedited written consultation on what price tests should be applied, the details of which will be communicated once the new draft guidelines have been published in the Canadian Gazette. Once the new guidelines are finalized, rights holders will be provided with a reasonable period to become compliant.[6] Although the PMPRB is aiming to have these new draft guidelines published in a timely manner, no firm time frame has been established.

This response by the Canadian government should benefit pharmaceutical companies by ensuring that the PMPRB does not exceed its authority by considering consumer protection or general pricing regulations in its determination of “excessive” pricing. In the meantime, we anxiously await the release of the new PMPRB guidelines.

For more information please contact:

Claire Palmer, Ph.D., Senior Patent Agent
T: 613.801.0450
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Carly Horvath, Articling Student
T: 613.801.0456
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This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.

By David Fraser, November 15, 2021

In the academic world, it is common for researchers to attend and present their findings at conferences. Papers presented will typically end up as part of conference handouts or available online for future use. PowerPoint slides used in presentations are also sometimes published or distributed. Posters are often set up where attendees may view them. Conversations between researchers happen after presentations, and at numerous coffee breaks and networking events. In the publish or perish world of academia, conferences provide one of the best venues to present your ideas and research and meet with like-minded people.

Similarly, in the corporate world tradeshows are often used to show off products and demonstrate their features and capabilities to potential customers. Trade show booths often include demonstration systems, brochures, and marketing presentations that are only available for the two or three days of the show. Copies of brochures and presentations may be saved or may be destroyed afterwards.

Unfortunately, what is good for the sharing of information is often not good for the patenting of inventions that arise from the research and products presented at these conferences. The subject matter of a patent claim must not have been previously disclosed, and the invention must not be obvious to a person skilled in the art or science to which it pertains[1]. Conference presentations, presentation slides, and posters can all be prior art, whether they come from an inventor or someone else, and can prevent you from patenting your inventions.

Posters are an interesting case in that they may often be displayed for just a few hours, be viewed by passersby, and usually do not become part of the published conference proceedings. They are often untraceable or destroyed later. They often will not contain enough information to prevent an invention from being novel, but nevertheless may form part of the state of the art that must be considered when determining if an invention contains an inventive step.

In Biogen Canada Inc. v. Taro Pharmaceuticals Inc., 2020 FC 621, a poster was presented at a conference in Baltimore in 2002, 18 years previous. The poster was available to the court but had only been presented for a short time at the conference, and in the intervening years could not have been found even with a reasonably diligent search. Nevertheless, expert testimony established that the poster was indeed genuine and therefore its contents formed part of the state of the art in 2002 for determining obviousness of the patent claims in question. The poster, together with information found in other sources of prior art, were enough to find the patent claims in question obvious and invalid. This case is interesting since a poster, only presented for a short time at the conference and thereafter not being available, was used to establish the state of the prior art 18 years ago.

In Mediatube Corp. v. Bell Canada, 2017 FC 6 the plaintiff alleged that the defendant’s Fibe TV service could be modified to infringe its patents. Bell argued that all limitations of the relevant patent claims had been disclosed in a number of sources, including brochures and prototype systems that had been presented at the SuperComm tradeshow in June 1998, 19 years previous. Brochures were available to the court. Mediatube argued that the brochure was only disclosed at the tradeshow and could not be considered to have been available to the public as it could not later be found in a reasonably diligent search by a skilled person. With the help of expert testimony, the court decided that the brochures and presentations of the systems, despite only being available for a short time, were part of the state of the art at the time and could be considered when determining the validity of Mediatube’s patent claims.

On the other hand, in Valence Technology, Inc. v. Phostech Lithium Inc., 2011 FC 174, the defendant was challenging the validity of plaintiff’s patents. Phostech asserted that conference publications, presentations, and posters presented twelve years previous were prior art to at least some of the patent claims. The presenter had also had discussions while at the conference. The poster had since been destroyed and could not be presented to the court. When defining the common general knowledge at the key date the judge decided to exclude the presentations, posters, and any discussions that may have happened. Though not stated, this may have been because the poster had been destroyed and that there were no experts to testify to its contents or importance.

It is difficult to determine in advance if a poster will later be found to form part of the state of the art when considering patent validity. For prior art, such as a poster, that may only be presented for a few hours at a scientific or industry conference, it is uncertain whether it can be considered part of the body of prior art of which a person skilled in the art could be said to possess, especially since it may not be found later even through a reasonably diligent search. Like any disclosure, the best practice is to:

1. Review all public disclosures, even those that are short-lived and will be unavailable later.

2. Be careful what kind of information you put on a poster. Try to use more general information on all conference materials if possible.

3. If you must disclose detailed information, restrict any disclosures to individuals or groups in a non-public space under NDA.

4. File a provisional or utility patent application before the event.

5. Review and document what others present. Smartphones make it easy.

Better to be safe than sorry!

If you are considering filing a patent and worried about your conference/event disclosure, please feel free to contact MBM for a free consultation.

By Scott Miller and Carly Horvath, October 14, 2021

Introduction

In the recent 2021 decision of Winkler v. Hendley, 2021 FC 498 [Winkler], the Federal Court (the “Court”) addressed an unusual issue of copyright protection in a nonfictional work containing descriptions of events with questionable historical accuracy. In its decision, the Court reiterated that copyright protection does not extend to facts. Moreover, when a work is presented as nonfiction, the facts are not subject to copyright protection. This case serves to reinforce the scope of copyright protection and sets an important precedent in Canada for copyright in nonfictional works.

Case Background and Overview of the Dispute

In Winkler, the plaintiffs, John Winkler and the estate of the late author Thomas Kelley (“Mr. Kelley”) sued author, Nate Hendley (“Mr. Hendley”), and his publisher, James Lorimer & Company Ltd., the defendants, for copyright infringement. In 1954, Mr. Kelley published a book called The Black Donnellys, which was published and sold as a nonfictional account of a notorious family from Lucan, Ontario. In 2004, Mr. Hendley wrote and published a book called The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud (the “Outrageous Tale”), which cited The Black Donnellys as authority for many of the historical events detailed in the book. Despite The Black Donnellys being published as nonfiction, the plaintiffs argued that some of the events described in the book were actually fictional, or contained embellishments made by the author. It was on the basis of these alleged embellishments and “fictional accounts” that the plaintiffs based their claim of copyright infringement against the defendants under sections 3[1] and 27[2] of the Copyright Act (the “Act”).

Analysis and Decision

In its analysis, the Court began by clarifying that in Canada, copyright subsists “in every original literary work”, regardless of “whether that work is one of fiction or nonfiction”[3]. The Court further reiterated the longstanding principle that there is no copyright protection in facts or ideas, but rather, copyright protects the original expression of those ideas. What is critical for copyright infringement is whether there was a substantial taking of the work in issue, defined as the “part of the work that represents a substantial portion of the authors’ skill and judgment”[4]. Importantly, the historical accuracy of the presented facts in a work is not contemplated by the Act. Therefore, the factual aspects of The Black Donnellys were excluded from the Court’s comparison of passages from The Black Donnellys and the Outrageous Tale in its determination of whether there was copying of a “substantial part” of the originality of The Black Donnellys.

After the facts were excluded, the Court concluded that any similarities between the works were so minimal that they did not amount to a substantial taking. Therefore, the Court held that there was no copyright infringement. Moreover, the Court stressed that an author cannot publish a work as nonfiction and later claim that the facts were actually fiction for the purpose of pursuing a copyright case. There are clear public policy reasons behind this principle; the public should be able to rely upon published facts without the concern that the author will later turn around and sue for copyright infringement at a whim. The Court did leave open the possibility that future cases may arise in which asserted “facts” are so implausible that the work must be interpreted as a fiction; however, this scenario was not applicable in this case.

Importance of Court Decision and Key takeaways

• Winkler is the first Canadian decision addressing a nonfiction work that was later claimed to be fiction.
• The law is similar in other countries; for example, in the United States, the doctrine of copyright estoppel (also known as the “asserted truths” doctrine) protects against copyright holders of a nonfiction work who subsequently seek to claim that the work is fiction as grounds for copyright infringement.
• The Court further affirmed the longstanding principle that there is no copyright protection in facts or ideas but rather the expression of those ideas. Importantly, as a general rule, the accuracy of such facts or ideas is not contemplated for the purposes of copyright protection.

Conclusions

The decision in Winkler is an important consideration for authors who intend to publish and market a book, and highlights the need to look to the future regarding the scope of copyright protection in a published work. Of particular importance is the need to be clear about what is being presented as fact and what is embellished in a nonfictional account. Therefore, prospective authors should also consider consulting with a lawyer experienced in copyright law to discuss how they can best protect their rights in a given literary work.

For expert assistance with any issues pertaining to copyright in a work, please reach out to MBM for a free consultation: