Improving Canada's Digital Advantage: Growing the ICT Industry through a Competitive Patent System

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Soumis par Intellectual Property Institute of Canada 2010–07–09 14:59:54 HAE
Thème(s) : Le contenu numérique canadien

Sommaire

Innovation cannot grow and thrive without a fertile environment. A competitive digital economy that stimulates innovation, attracts foreign investment and encourages businesses to compete internationally requires a robust intellectual property (IP) system. The link between a strong IP framework and foreign direct investment, innovation, and research is well established. However, in today's economy, a strong IP framework is not sufficient; it must also be internationally competitive.

Members of the Intellectual Property Institute of Canada (IPIC) have a unique perspective on Canada's IP regime and how it compares to the regimes around the world, what makes it attractive or a risk to foreign investment, and how it helps or hinders Canadian businesses in a global economy. From this perspective, it is apparent that our patent system needs strengthening and modernizing.

Legislative amendments to Canada's IP framework have not kept up with the changes to patent law in other counties, thus putting Canada at a disadvantage on the world stage and creating obstacles to the Government of Canada's strategy to grow a world–class information and communications technology (ICT) industry.

In this paper, we discuss amendments to IP legislation which we believe will \ enhance the competitiveness of the Canadian ICT sector both domestically and worldwide. Of primary importance, we recommend that legislative amendments be made to:

  • Provide protection for confidential communications between clients and their patent and trademark agents in order to align Canada with the legislative and business standards of its trading partners, better protecting Canadians, as well as encouraging foreign investment; and
  • Prevent inadvertent loss of IP rights in cases of exceptional circumstances; and
  • Enhance the SR&ED tax credit to cover procurement of intellectual property rights by domestic entities, both in Canada and abroad.

IPIC also recommends that the Canadian government hold horizontal policy discussions regarding the patentability of subject matter, to clarify priorities and ensure that a consistent message is sent to those who would invest in Canada, in both R&D and intellectual property.

IPIC believes that implementation of these recommendations will strengthen Canada's IP framework, and in turn, will encourage foreign direct investment and R&D partnerships, and support the growth of Canada's digital economy.


Soumission

Response to the Consultation Paper on a Digital Economy Strategy for Canada

July 8, 2010

Improving Canada's Digital Advantage: Growing the ICT Industry through a Competitive Patent System

Submission by the Intellectual Property Institute of Canada

Executive Summary

Innovation cannot grow and thrive without a fertile environment. A competitive digital economy that stimulates innovation, attracts foreign investment and encourages businesses to compete internationally requires a robust intellectual property (IP) system. The link between a strong IP framework and foreign direct investment, innovation, and research is well established. However, in today's economy, a strong IP framework is not sufficient; it must also be internationally competitive.

Members of the Intellectual Property Institute of Canada (IPC) have a unique perspective on Canada's IP regime and how it compares to the regimes around the world, what makes it attractive or a risk to foreign investment, and how it helps or hinders Canadian businesses in a global economy. From this perspective, it is apparent that our patent system needs strengthening and modernizing. Legislative amendments to Canada's IP framework have not kept up with the changes to patent law in other counties, thus putting Canada at a disadvantage on the world stage and creating obstacles to the Government of Canada's strategy to grow a world-class information and communications technology (ICT) industry.

In this paper, we discuss amendments to IP legislation which we believe will enhance the competitiveness of the Canadian ICT sector both domestically and worldwide. Of primary importance, we recommend that legislative amendments be made to:

  • provide protection for confidential communications between clients and their patent and trademark agents in order to align Canada with the legislative and business standards of its trading partners, better protecting Canadians, as well as encouraging foreign investment; and
  • prevent inadvertent loss of IP rights in cases of exceptional circumstances; and
  • enhance the SR&ED tax credit to cover procurement of intellectual property rights by domestic entities, both in Canada and abroad.

IPC also recommends that the Canadian government hold horizontal policy discussions regarding the patentability of subject matter, to clarify priorities and ensure that a consistent message is sent to those who would invest in Canada, in both R&D and intellectual property.

IPC believes that implementation of these recommendations will strengthen Canada's IP framework, and in turn, will encourage foreign direct investment and R&D partnerships, and support the growth of Canada's digital economy.

Canada has a number of core capabilities in information and communications technology (ICT) to offer potential partners, particularly in the areas of telecom/wireless, software and IT services, digital and new media, and photonics.Footnote 1 For example, Canada has the opportunity to become a world leader in specialized areas such as the development of and transition to 4G (Long Term Evolution) networks, customized software and information security, laser and infrared technologies (particularly with applications in the life sciences sector), and cloud computing, amongst others. All of these technologies have significant intellectual property (IP) implications. Canadian and foreign companies alike will look carefully at a country's IP framework when making important business decisions, such as where to conduct R&D and where to file for IP protection. IP implications are particularly important in a global marketplace where international joint ventures and strategic alliances are common.

A competitive digital economy that stimulates innovation, attracts foreign investment and encourages businesses to compete internationally requires a robust IP system. The Government of Canada, in "Mobilizing Science and Technology to Canada's Advantage" states "a modern intellectual property regime is critical for researchers and creators, whose ability to commercialize the fruit of their labour is directly linked to the protection provided by patent and copyright laws. Canada therefore needs to maintain intellectual property protection that is competitive with its trading partners in order to attract both venture capital and intellectual capital."Footnote 2

There are several important issues inherent in Canada's IP infrastructure that could render many of the Government of Canada's strategies to grow a world-class ICT industry difficult to implement. In particular, legislative amendments have not kept up with changes to IP law in other counties, and quick action must be taken in order for Canada to catch up. In this submission, we highlight how Canada's legislation compares to other nations and present recommendations that are geared to align IP law with the Government of Canada's plan to support and foster a thriving digital economy.

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Part I: Canada's place in the world of patents

The Organisation for Economic Co-operation and Development (OECD)'s "Guide to Measuring the Information Society 2009"Footnote 3 describes the importance of relying on IP indicators, specifically, patents, when determining innovation in the ICT industry:

Patents are a key measure of innovation output. They can be used to measure R&D output, knowledge spillovers, inventive performance, as a tool to assess the direction of research, and the strategic aims of companies. Patents can also provide an insight into the level of internationalisation (of innovative activities), co-operation (of R&D activities) and mobility of researchers.

The Conference Board of Canada also uses patents as its key measure of innovation, and states "patenting is a means of gauging how well countries transform knowledge into useful inventions. Countries with more patents are in a better position to pioneer new-to-world technologies and derive above-average economic gains from intellectual property."Footnote 4

When looking at the World Intellectual Property Organization's (WIPO) World Intellectual Property Indicators (2009)Footnote 5 and the Conference Board of Canada's "Report Card on Canada,"Footnote 6 we can see that although Canada has world-class researchers and IP practitioners, it is nevertheless lagging significantly behind other countries in terms of patenting activity and patenting growth. We present two perspectives used by these organizations: patents filed into a country (by residents and non-residents), and so-called 'triadic patent families' filed by Canadians (i.e. patents filed in the U.S., Japan and European patent offices for the same invention).

Figure 1: Total Patent Applications, Top 5 Patent Offices and Canada, 1998-2008Footnote 7
Figure 1: Total Patent Applications, Top 5 Patent Offices and Canada, 1998-2008

The Conference Board of Canada states that "even as Canada has improved, its peers have continued to raise the bar for excellence in patenting".Footnote 8 In 1998, the patent offices in Canada, the EU, Korea and China were relatively close in terms of number of patent applications (see Figure 1). A decade later, however, according to statistics reported by WIPO,Footnote 9 applications in Korea had more than doubled, and applications in China had grown by 511.5%. In 1998, China had 1.4 times as many patent applications as Canada did; a decade later, the gap had widened to China receiving 6.9 times as many applications as Canada in that year. The EU also saw applications increase by 78.0% over the same time period. Although Canada received 23.9% more total patent applications in 2008 than the amount it had ten years earlier, it has not kept up with the growth in applications experienced by other countries.

Other WIPO statistics in terms of patents filed into Canada can be cause for concern. For example, Canada is 23rd in total patent filings per gross domestic product and 24th in total patent filings per R&D expense.Footnote 10

As for triadic patent families, the Conference Board of Canada's 2009 "Report Card on Canada" gives Canada a "D" grade for patents by population. Moreover, this ranking has been consistent throughout the past thirty years.Footnote 11 Canada is ranked 14th out of 17 countries. In comparison, for example, Switzerland and Japan filed over 5 times the number of triadic patent applications per capita as Canada.

These figures indicate there may be issues in transforming the knowledge obtained through investment in research into patentable innovations that may be commercialized in Canada.

Furthermore, with 87.5%Footnote 12 of patent filings in Canada coming from non-residents, it is imperative for Canada to ensure that its IP framework is competitive. The Conference Board of Canada also states that "to improve its performance, Canada must ensure incentives are in place to encourage more invention and patenting of inventions at home, as well as more strategic patenting of inventions from elsewhere."Footnote 13

Pressures from new competitors in emerging countries will continue to challenge Canada. Dinopoulos & SegerstromFootnote 14 comment that "the assumption that only the North can innovate could be relaxed," meaning that as emerging nations develop innovations along with better IP frameworks, more competitors will come on the horizon. In 2008, for the first time, a Chinese company, Huawei Technologies, filed more Patent Cooperation Treaty (PCT) patent applications than any other business in the world.Footnote 15 The government's digital economy consultation paper states "the private sector will be increasingly exposed to fierce global competition, and will need to take the lead role in driving the growth of Canada's digital economy."Footnote 16

Canada has a well-educated population and a stable and trustworthy business environment, seemingly significant assets for fostering a digital economy. Despite these qualities, however, in the government's own words "Canada is a middling performer" in ICT R&D growth.Footnote 17 The Honourable Gary Goodyear, Minister of State (Science and Technology) said in a recent speech that "the Government of Canada recognizes that there are significant benefits to be gained for Canada in this global economy by harnessing local strengths to create globally competitive clusters of expertise and technology…Without our government's targeted support, many small companies working in Canada's cluster initiatives would not be able to gain a foothold in today's aggressive global marketplace."Footnote 18

Issues with Canada's IP framework have put Canada at a disadvantage in comparison with other countries with more competitive legal frameworks. Strengthening our IP framework- in such ways as providing protection for confidential communications, expanding the SR&ED program to include patenting activities, and adding flexibility with regard to exceptional circumstances- will enhance the competitiveness of Canada's digital economy on the global stage. It is also necessary to examine the issue of patentable subject matter.

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Part II: How IP rights enhance competitiveness

Innovation cannot grow and thrive without a fertile environment. The government understands well the link between a strong IP framework and foreign direct investment, innovation, and research. In particular, effective and reliable patent protection can be crucial to Canadian companies in the ICT sector.

The Canadian Intellectual Property Office has stated that "without the possibility of patent protection, many people might not take the risk of investing the time or money necessary to create or perfect new products, without which our economy would suffer."Footnote 19 For instance, "start-ups" and early stage companies often rely on a robust patent portfolio to attract capital, as venture capitalists and other investors may be reluctant to offer funding without the prospect of patent protection. For many companies in the ICT sector, patents and other intellectual property rights may be their only real assets beyond the experience and know-how of their skilled employees (who may be transitory and take their knowledge with them when they leave). The problem with the Canadian system is that it has the potential to affect more than just the Canadian operations of a company: foreign companies may hesitate to do business in Canada because it may put both their Canadian and foreign patents at risk. Strong patent rights provide investors with a means to commoditize their investments, giving them the confidence to take risks in Canadian ICT companies.

Patent rights are also important to stimulate R&D investment for larger and more established companies, and to protect innovative Canadian companies from foreign competition. Other forms of IP, although valuable, are not as powerful as patents for protecting innovation. Copyright and trade-marks are excellent tools to promote branding and services and to enhance patent protection when appropriate (such as "BlackBerry" for the patented communications product and tools), and need to keep pace with other countries' activities and legislation. However, patents truly protect innovative function developments in the ICT sector, provided they are extended to all countries in which they can be developed.

Furthermore, it often takes significant investment levels of both time and money to develop new and useful innovations in the ICT sector. Tax credits and other incentives can help defray these costs, but without adequate patent protection, companies will be disinclined to invest in R&D in Canada, since competitors will be able to copy innovative products and services without paying for their development.

The government's digital economy consultation paperFootnote 20 specifically outlines the importance of "creating a positive foreign investment and research and development (R&D) environment" and states that "policies and programs must be adjusted to where appropriate to maximize Canadian success in the digital economy." A stronger IP framework is a key part of the solution. In the next section, we outline specific recommendations that we believe will have the greatest positive impact towards the realization of Industry Canada's goals.

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Part III: Key recommendations to enhance Canada's competitiveness

The Expert Panel on Commercialization identified the current IP regime as one of the potential explanations for the relatively weak state of Canadian private sector investment in R&D and highlighted the need for modernization in its report.Footnote 21

The Canadian IP system, although generally well-regarded, has problems that place Canada at a disadvantage. In recent years, certain events have sent negative signals to the rest of the world. IPC has identified significant risks for companies inherent in the Canadian IP system that must be addressed in order for Canada to improve its digital advantage, most notably, the lack of protection for confidential communications, the lack of provisions in place for rectifying a loss of rights arising from exceptional circumstances, and restrictive interpretations on what constitutes patentable subject matter. Financial obstacles to patenting, which may be overcome by developing a competitive incentive system, may also be holding back potential growth of Canada's digital economy.

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Recommendation 1: Protection of confidential communications

Clients disclose confidential information to agents in the course of considering IP protection, drafting applications, and discussing rights between applicants and third parties. Contrary to the situation in most other major economic jurisdictions, confidential communications between a client and its patent or trade-mark agent (including a lawyer acting in the capacity of a patent or trade-mark agent) in Canada are not protected from disclosure in litigation. This puts holders of Canadian patents and trade-marks at a disadvantage from holders of IP rights in other countries, where such protection exists for these types of communications. This issue alone may discourage innovators from filing in Canada. The International Chamber of Commerce, for example, has stated that companies are "inhibited from setting up research and development facilities in countries where inventors' communications with local IP advisors are not privileged", and singles out Canada in this regard.Footnote 22

Communications between clients and patent and/or trade-mark agents are protected by legislation or treaty in a number of jurisdictions including Australia, the European Patent Organization (34 member states), France, Germany, Japan, New Zealand, the Netherlands and the United Kingdom.

US courts have recognized privilege for communications with an agent from another country, but only if those communications are protected from disclosure in that country. A 1999 case in the US between a French pharmaceutical company and a competitor, in which the French company was forced to divulge its communications while the other company was not, prompted France, the Netherlands and the European Patent Organization to adopt statutes to protect communications.Footnote 23 Therefore, companies having employed a Canadian agent can be at a serious disadvantage when entering IP litigation outside Canada. This issue also affects Canadian companies and foreign companies who perform R&D in Canada.

Another example highlighting how lack of privilege for clients can negatively affect foreign investment in Canada took place in December 2006 during litigation between two major pharmaceutical corporations. In this instance, the judge ordered one company to divulge the confidential communications held with its UK patent agent.Footnote 24 This is significant because in the UK, these communications are protected by statute; however, they are not in Canada. The judge indicated that the company had to live with the "burdens" of Canada's system of justice.

In its book Open Innovation in Global NetworksFootnote 25 the OECD states that "confidentiality and exclusivity agreements are central to partnerships" and that "the main barrier to internationalisation of R&D [is] the risk of leakages of information and proprietary knowledge". The International Chamber of Commerce states that "according privilege to communications between clients and legal advisers is in the interests of justice; it is a public good."Footnote 26

IPC recommends that confidential communications between clients and their patent and trademark agents be protected from forced disclosure in order to encourage innovators to research, develop, commercialize and invest in Canada. This can be achieved by simple legislative amendments.

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Recommendation 2: Hold policy discussions on patentable subject matter

The overarching purpose of the Patent Act is to encourage innovation. Section 2 of the Act defines "invention" as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement…" thereof. The only statutory exclusions to patentable subject matter are i) mere scientific principles and ii) abstract theorems, as set out in section 27(8). If the subject matter of an application is an "invention" within the meaning of section 2 (and the application complies with other requirements of the Act and Rules), the Commissioner must grant a patent - it is well settled that the Commissioner has no discretion to refuse an invention that meets the statutory criteria.

The Canadian Intellectual Property Office (CIPO) has recently adopted interpretations of the law that now exclude many innovations from patent protection, particularly innovations in the ICT sector. These changes put Canada at a competitive disadvantage on the world stage. Top patent-filing countries, in particular, Japan and the US, have broader definitions of patentable subject matter than CanadaFootnote 27. Rather than expanding the definitions of patentability to align with legislation in other countries, however, Canada has instead become more restrictive.

For example, in 2007 CIPO indicated that inventions embodied in electromagnetic signals are no longer patent-eligible. More recently, CIPO has adopted new chapters of the Manual of Patent Office Procedure (MOPOP) explaining in great detail what types of valuable innovations are not eligible for patent protection, in some cases with unclear support from Canadian lawFootnote 28. In particular, CIPO's new policies exclude the following innovations relevant to the ICT sector:

  • innovations that are not "physical"Footnote 29
  • innovations that are not "technological"Footnote 30
  • new types of electromagnetic signals
  • innovative software products
  • innovative business methods

As a consequence, inventions that fall into one of these categories are no longer considered by CIPO to be eligible for patent protection. Their innovative and commercially valuable features are ignored, even where they provide valuable commercial products and services in today's information-based economy. The changes in CIPO policies have introduced major uncertainty about what is patentable in Canada. This is a significant disincentive to investment, increases the costs of patent prosecution while delaying or preventing the issuance of truly innovative patents, and places Canadian patent law out of step with other major jurisdictions, particularly the United States. For example, the U.S. Supreme Court ruled on June 28, 2010 in Bilski v. KapposFootnote 31 that business methods are eligible for patent protection so long as the business method is not merely an abstract idea.

With respect to current examination procedures, CIPO's new policies call for examiners to attempt to distill the "substance" of an invention, and then apply the test for patent eligibility only to what is determined to be novel. Thus, even where claims are properly directed to new devices and machines, which the Patent Act stipulates are patentable, such claims can now be rejected as ineligible for patent protection because a portion of the claim relates to improperly excluded subject matter.

In his June 25, 2010 speech at the G-20 Summit, Minister of International Trade Peter Van Loan called Canada "a modern and innovative business destination", and said "Canada offers an environment where innovators can create, businesses thrive and investors succeed." We believe it to seem paradoxical that the Government provides incentives to invest in new innovation in the ICT sector with the one hand, while with the other hand it prevents Canadian companies from benefiting from these investments by denying even the possibility of patent protection for many commercially desirable innovations. IPC is concerned that in today's information-based economy, CIPO's policy changes are at odds with the Government's goal of positioning Canada "as a destination of choice for venture capital and development mandates."Footnote 32

While CIPO's interpretation of the law is currently being discussed before the court, and while the court may hold the same views as IPC, we recommend that the government act now and hold horizontal policy discussions regarding patentable subject matter in order to clarify priorities, and ensure a consistent message is sent to those who would invest in Canada, in both R&D and intellectual property.

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Recommendation 3: Expand the Scientific Research and Experimental Development (SR&ED) Tax Credit Program to cover patent costs

The creation of technological innovations arising from research and development activities in Canada is financially supported by the Scientific Research and Experimental Development tax credit program (the "Program"). In general, costs related to the acquisition, preservation, enforcement or commercialization of patents, however, do not currently qualify as eligible expenses under the Program. To capture the full potential of those technological innovations, the Program should also support the acquisition of intellectual property, and in particular, patents.

In the last few decades, the global marketplace has developed many possible paths leading from research towards commercialization, with various intermediaries often playing a role. For example: angel investors, venture capitalists, junior stock exchanges, strategic alliance partners, joint ventures, acquirers, and licensees are often involved in converting a raw idea into a commercially viable product or process. Innovations usually need to be secured with appropriate intellectual property protection to enable commercial transactions to take place. However, even when owners of technological innovations recognize the value of intellectual property rights, such as patents, the costs to secure these rights can be a deterrent. Companies with limited financial resources may decide not to protect, or to delay in protecting, their innovations.

Furthermore, it should also be noted that patent law rewards the early disclosure of such innovations by the filing of patent applications; serious penalties can arise from filing delays, such as the awarding of a patent to a competitor or the barring of patent protection altogether. It is important to encourage owners of such innovations to seek a patent sooner rather than later.

Therefore, to help overcome financial obstacles and encourage more innovators to file for patents, it is suggested that the Program should explicitly include costs associated with patents as eligible expenses, specifically:

  • costs associated with prior art searching and preparing an original patent specification;
  • costs associated with filing an initial patent application in a Patent Office utilizing the prepared original patent specification;
  • costs associated with filing one or more patent application(s) corresponding to initial patent application (as per item 2 above) in additional foreign jurisdictions;
  • costs associated with prosecuting and maintaining the applications filed pursuant to items (2) and (3) above; and
  • costs associated with appeals, re-examination, conflict and re-issue proceedings; that are paid to a governmental authority or to Canadian intellectual property services firms.

At least BelgiumFootnote 33 and FranceFootnote 34 have research and development support programs that are believed to be similar to Canada's Program. However, the Belgian and French programs appear to also include financial assistance/tax credits relating to certain types of patent costs. IPC believes extending the SR&ED program to include patent costs as eligible expenses will help Canada's ICT industry grow.

IPC recommends that the government should extend the SR&ED program to include patent costs as eligible expenses.

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Recommendation 4: Flexibility with regard to deadlines in exceptional circumstances

The failure to strictly adhere to the current rigidity of IP legislation in Canada can cause a person or organization to lose the right to a patent or trade-mark for reasons that have nothing to do with the fundamental principles of the IP system. This issue was brought to light for Canadians and foreign rights owners after a power outage in Ontario in 2003. This power outage caused at least one company to lose IP rights because it was impossible for Toronto agents to meet a deadline with the Canadian Intellectual Property Office. Although the United States had all the mechanisms in place to avoid any loss of rights during the blackout, Canada did not. This issue, which affects patents, trademarks, industrial designs and copyright, has not yet been resolved. This is cause for concern as another disruptive event, natural or otherwise, can happen at any time. Apart from natural disasters, local political events can challenge the need to meet deadlines, as demonstrated very recently when a number of businesses were forced to close unexpectedly during the G20 summit in Toronto.

The concerns by Canadian and foreign innovators and investors about the potential loss of patent rights for such exceptional reasons can be a disincentive to patent in Canada and can harm the perception of Canada's innovation environment.

IPC recommends that the government amend the IP legislation and/or regulations as necessary to provide corrective measures that would avoid such inadvertent loss of rights.

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Conclusion

In the March 3, 2010 Speech from the Throne35, the Government stated that:

Bright minds with bold ideas transformed sound and electricity into the communications network that links our world. But today we face new challenges. Determined competitors are rising. The relentless pace of technology means that every day there is something newer, faster, better. To succeed in the global economy, Canada must keep step as the world races forward.

Later in its speech, the Government also stated that "to encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada's prosperity, our Government will also strengthen laws governing intellectual property and copyright." Canada has the opportunity to break free from the middle of the pack and become a key player in the world's digital economy. A strengthened IP framework is one of the most important, and easiest, ways to make this happen. Protecting confidential communications, establishing financial incentives for patenting, creating provisions for exceptional circumstances and examining the definitions of patentable subject matter are relatively simple actions that could go a long way towards encouraging foreign direct investment and R&D partnerships, and supporting the growth of Canada's digital economy.

A note about IPC

The Intellectual Property Institute of Canada (IPC) represents over 1,700 patent agents, trade-mark agents, lawyers, academics, technology transfer officers and business people specializing in intellectual property (patents, trade-marks, copyright, and industrial designs). Our members practice in all sectors of the Canadian economy including major Canadian law firms, private practice and corporations, and combine expertise in scientific and engineering disciplines together with thorough knowledge of the legal aspects of intellectual property. IPC members deal around the world with organizations that invest in Canada and file their IP rights in Canada. Members of IPC have a unique perspective on Canada's IP regime and how it compares to the regimes around the world, what makes it attractive or a risk to foreign investment, and how it helps or hinders Canadian businesses in a global economy.

We thank the Government of Canada for the opportunity to comment on Improving Canada's Digital Advantage: Strategies for Sustainable Prosperity. If we can be of further assistance, please do not hesitate to contact our executive director, Michel Gérin, at 613-234-0516 or mgerin@ipic.ca.


Footnotes

  1. 1 back to footnote reference 1 Canada. Canadian Trade Commissioner Service. ICT Sector Profile: China. Beijing: 2010.
  2. 2 back to footnote reference 2 Canada. Federal Partners in Technology Transfer. Mobilizing Science and Technology to Canada's Advantage. 2007.
  3. 3 back to footnote reference 3 Organisation for Economic Co-operation and Development. Guide to Measuring the Information Society, 2009. Retrieved June 24, 2010, from http://www.oecd.org/dataoecd/25/52/43281062.pdf
  4. 4 back to footnote reference 4 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  5. 5 back to footnote reference 5 World Intellectual Property Organization. World Intellectual Property Indicators 2009. WIPO Publication No. 941 (E)
  6. 6 back to footnote reference 6 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  7. 7 back to footnote reference 7 World Intellectual Property Organization. World Intellectual Property Indicators 2009.WIPO Publication No. 941 (E)
  8. 8 back to footnote reference 8 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  9. 9 back to footnote reference 9 World Intellectual Property Organization. World Intellectual Property Indicators 2009. WIPO Publication No. 941 (E)
  10. 10 back to footnote reference 10 ibid.
  11. 11 back to footnote reference 11 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  12. 12 back to footnote reference 12 World Intellectual Property Organization. World Intellectual Property Indicators 2009. WIPO Publication No. 941 (E)
  13. 13 back to footnote reference 13 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  14. 14 back to footnote reference 14 Dinopoulos, E. & Segerstrom, P. (2010) Intellectual Property Rights, Multinational Firms and Economic Growth. Journal of Development Economics, 92, 13-27
  15. 15 back to footnote reference 15 World Intellectual Property Organization. World Intellectual Property Indicators 2009. WIPO Publication No. 941 (E)
  16. 16 back to footnote reference 16 Canada. Industry Canada. Improving Canada's Digital Advantage: Strategies for Sustainable Prosperity. Ottawa: 2010.
  17. 17 back to footnote reference 17 ibid.
  18. 18 back to footnote reference 18 Goodyear, Gary, PC, MP Minister of State (Science and Technology) Speaking Points, "Funding Initiatives for NRC's Technology Cluster Initiatives" St. John's, Newfoundland, June 24, 2010. Retrieved June 30, 2010, from http://www.ic.gc.ca/eic/site/ic1.nsf/eng/05689.html
  19. 19 back to footnote reference 19 Conference Board of Canada. A Report Card on Canada 2009-10. Retrieved June 30, 2010, from http://www.conferenceboard.ca/HCP/Details/innovation/patents-by-population.aspx#improving
  20. 20 back to footnote reference 20 Canada. Industry Canada. Improving Canada's Digital Advantage: Strategies for Sustainable Prosperity. Ottawa: 2010.
  21. 21 back to footnote reference 21 Industry Canada, Final Report of the Expert Panel on Commercialization, People and Excellence: The Heart of Successful Commercialization, 2006, volume 1, at pages 17 and 30
  22. 22 back to footnote reference 22 International Chamber of Commerce. Commission on Intellectual Property. Client Privilege in Intellectual Property Advice. Paris: 2008.
  23. 23 back to footnote reference 23 Bristol-Myers Squibb Company v. Rhone-Poulenc Rorer, 2002 [U.S. Dist].
  24. 24 back to footnote reference 24 Lilly Icos LLC v. Pfizer Ireland Pharmaceuticals, 2006 FC 1465 (Federal Court, December 6, 2006)
  25. 25 back to footnote reference 25 Organisation for Economic Co-operation and Development. Open Innovation in Global Networks. Retrieved June 24, 2010, from http://browse.oecdbookshop.org/oecd/pdfs/browseit/9208071E.PDF
  26. 26 back to footnote reference 26 International Chamber of Commerce. Commission on Intellectual Property. Client Privilege in Intellectual Property Advice. Paris: 2008.
  27. 27 back to footnote reference 27 McGill Centre for Intellectual Property Policy. International Expert Group on Biotechnology, Innovation and Intellectual Property- World Patent System. Retrieved June 25, 2010, from http://www.cipp.mcgill.ca/en/publications/project/?q=ipmg-wps
  28. 28 back to footnote reference 28 Many of the specific problems have been discussed in detail in prior submissions by IPC (and others), available at http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr02082.html.
  29. 29 back to footnote reference 29 CIPO's position is that in order to be eligible for patent protection, a new innovation must either be a physical object, or an act or series of acts by some physical agent on some physical object. See MOPOP, s. 12.03.02.
  30. 30 back to footnote reference 30 CIPO currently does not consider "economics, commerce, accounting, record-keeping, marketing and law" to be fields of technology. Also CIPO's position is that "methods for influencing human interactions or behaviours", and "methods that are significant only by virtue of human, rather than natural, law" do not belong to a field of technology. See MOPOP, s. 12.04.02. 31 Bilski et al. v. Kappos 561 U.S. (2010) Slip Opinion USSC June 28, 2010.
  31. 31 back to footnote reference 31 Bilski et al. v. Kappos 561 U.S. (2010) Slip Opinion USSC June 28, 2010.
  32. 32 back to footnote reference 32 Canada. Industry Canada. Improving Canada's Digital Advantage: Strategies for Sustainable Prosperity. Ottawa: 2010.
  33. 33 back to footnote reference 33 European Commission. Directorate-General. European Trend Chart on Innovation. Belgium: 2006.
  34. 34 back to footnote reference 34 European Commission. Directorate-General. European Trend Chart on Innovation. France: 2006.
  35. 35 back to footnote reference 35 Canada. Governor General. "A Stronger Canada. A Stronger Economy. Now and for the Future." Speech from the Throne: March 3, 2010.

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