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How the government hopes to strengthen intellectual property in Canada

Last Updated Apr 27, 2018 at 11:40 am EDT

Innovation, Science and Economic Development Minister Navdeep Bains rises in the House of Commons in Ottawa on Friday, October 20, 2017. The federal government unveiled new measures on intellectual property Thursday as it seeks to improve Canada's performance in a critical area of the increasingly important ideas-based economy.THE CANADIAN PRESS/Adrian Wyld

OTTAWA – The federal government has unveiled new measures on intellectual property as it seeks to improve Canada’s performance in a critical area of the increasingly important ideas-based economy.

Intellectual property, or IP, is about owning, protecting and making money from an idea in any sector through intangible assets like patents, trademarks and copyrights.

In launching the government’s long-awaited strategy Thursday, Economic Development Minister Navdeep Bains called IP the most valuable business asset in the knowledge economy.

In its recent budget, the Liberal government committed about $85 million over five years towards a strategy.

Thursday’s release follows warnings that Canada has been a laggard on the international stage when it comes to IP development. Some industry and academic leaders say the country’s entrepreneurs, companies and the wider economy have been at a disadvantage, particularly when compared to big IP players like the United States and China.

Only 10 per cent of small- and medium-sized businesses in Canada have IP and only nine per cent of them have IP strategies, Bains noted.

Ottawa is also hoping to address what it calls “bad behaviour” in the country’s existing IP regime with help from legislative amendments to curb intimidation and inappropriate “trolling” of some businesses by patent holders.

Here are several ways the federal government says it will improve the IP in Canada:

— Stamping out misuse and eliminating barriers surrounding IP. The government is pledging to eliminate obstacles for innovative companies by amending key laws for patents, copyrights and trademarks. Proposed changes to the Patent Act would discourage IP owners from sending deceptive or vague notices to businesses alleging patent infringement. In the past, such notices have been used to unfairly intimidate firms and sometimes demand they pay settlements for alleged IP infringement. Under the changes, the government says settlement demands will be removed from the so-called notice-and-notice regime.

“This was designed, really, as an educational measure — the idea that people would become more aware of the limits of copyright,” University of Ottawa law professor and IP expert Michael Geist said of the original purpose of the system. “It was never intended to be used to include settlement demands.”

The proposed changes will also look to address the practice of “trademark squatting,” where people misuse the system by hanging onto a trademark they have no intention of using themselves, such as an internet domain name, to sell it at a later date for profit.

— Better tools to expand the use of IP. Ottawa aims to give businesses the tools they need to pursue their own IP strategies. For example, it will provide $18.7 million over five years to help make the processes for dispute resolution and copyright tariffs cheaper and more efficient for IP owners and users. The government will also provide funds to help innovative Canadian firms leverage their IP — and increase revenues — by making sure their patented technologies comply with international standards. The plan has also provided more details about the creation of a new, $30-million patent collective, which was announced in the budget and will enable companies to pool and share their IP as well as their IP strategies.

— Increasing awareness, literacy and sophistication surrounding IP. The plan also includes several ways to help Canadians better understand IP. Examples include $1 million over five years to support clinics that help law students lean more about IP, access to advisers and online tools to help demystify the IP process via the Canadian Intellectual Property Office. and $2 million over three years for surveys to gauge how well Canadians understand and use IP, with a focus on those less likely to use it such as female and Indigenous entrepreneurs.

“They may seem small but their potential impact is huge,” said University of Windsor law professor Myra Tawfik, an expert on the subject who has been advocating for the IP law clinics for a long time.

“We’re encouraging — especially on university campuses — students to come up with the next best idea that they’ll be able to commercialize and, of course, will then lead to Canada’s growth and prosperity. And yet we’re not providing them with the entire menu of resources and tools that they need — most especially, intellectual-property legal advice.”

She said there are really only two law clinics in Canada that provide IP searches and advice, while in the U.S. there are hundreds.

Overall, Tawfik said, the various measures in the IP strategy are “quite significant” and could help Canada catch up with other jurisdictions around the world.

“You’ve got to recognize that none of these things have really been in place before (in Canada),” she said.

Note to readers: This is a corrected story. An earlier version omitted Myra Tawfik’s first name and title.