On April 26th, in conjunction with World Intellectual Property Day, Canada’s federal government announced a new National Intellectual Property Strategy. The strategy is aimed at facilitating an innovation ecosystem within Canada by raising IP awareness among Canadian entrepreneurs and increasing regulations on patent and trademark agents operating within the country.
The strategy, which received support from the Intellectual Property Institute of Canada, was first announced in Canada’s 2017 federal budget. At that time, the government sought public comment on ways to improve IP education, improving access to IP advice, increasing access and the generation of IP, and ways that the national IP system could be inclusive to underrepresented groups like women and indigenous people.
The recently announced National IP Strategy makes changes in three key areas related to governmental policy on IP. The strategy directs the Canadian government to create a patent collective designed to bring businesses together to share IP expertise and achieve improved IP outcomes. To improve IP literacy, Canada has also developed various programs including seminars, training resources and outreach support both domestically and on the international stage. The strategy also includes legislative changes to ensure ethical standards among patent and trademark agents and to “remove barriers to innovation, particularly any loopholes that allow those seeking to use IP in bad faith to stall innovation for their own gain.”
And just who are these loophole-seeking bad faith actors seeking to bring the innovation economy of Canada to a grinding halt? Well, patent trolls, of course. At least that was the argument proffered in an article published online by the CBC on the National IP Strategy. The Canadian news outlet specifically cited “legislation to protect patents, copyright and trademarks of Canadians firms from so-called ‘patent trolls’ outside the country.” (Seemingly, such entities wouldn’t be operating within Canada, probably given Canadians’ natural tendency to be nicer than most people around the world.)
But, truly, there are some important things to unpack about the CBC’s coverage of Canada’s new IP policies. First of all, how exactly will the new legislative fixes protect Canadian trademarks and copyright from patent trolls? Not all intellectual property is the same and conflating these three areas of IP in the name of supporting anti-patent troll measures is evidence of a real lack of understanding of IP.
The fact that the Canadian government is moving on legislative fixes to prevent bad-faith IP actors is also deserving of more scrutiny. It’s easy to point to the boogeyman of the patent troll but, in reality, concerns regarding such bad-faith actors tend to be overblown and have had the effect of nearly destroying the U.S. patent system in recent years. That decline has occurred even as the Federal Trade Commission has publicly said that the use of the term “patent troll” is prejudicial. Incredibly, at least as it specifically relates to patent owners, it would seem that the American government better understands a politically incorrect viewpoint than the Canadian government which is aiming for high inclusivity on IP matters.
But let’s leave all of that to the side for one minute and go back to Canada’s effort to inhibit patent trolls “outside the country.” Even assuming that Canadians themselves are too nice to be patent trolls, that language seems highly suspicious of foreign entities and reflects a viewpoint which is interesting given the context of the ongoing renegotiations of the North American Free Trade Agreement (NAFTA). Elsewhere, in China, national-level IP policies which seek to promote Chinese indigenous innovation have themselves been the target of international legal battles. The Made in China 2025 IP policy, which is designed to encourage innovation in 10 key areas of tech, has played into the tariff battle shaping up in recent months between the U.S. and China regarding deceptive IP practices.
This isn’t the first time that a mythical creature has captured the wonderment of Canadians, many of whom still fervently believe that a Lord Stanley will come to live in Toronto at some point in the near future. But what Canada’s National IP Strategy augurs for foreign patent owners has to be troubling to many. We’ve seen more cases where legitimate patent owners have been eviscerated by the court of public opinion than we’ve seen actual patent trolls. Where American companies have complained about trolls, those claims have often been overblown to the point where potentially false testimony has been provided to Congress during hearings on patent system abuses. For a government that says it wants to be more inclusive, Canada sure seems like it has no problem over-generalizing an entire class of inventors in a derogatory, and potentially defamatory, manner.