Canada’s National IP Strategy Stoking Fears About Patent Trolls

By Steve Brachmann
May 10, 2018

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.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 7 Comments comments. Join the discussion.

  1. Anon2 May 10, 2018 9:42 am

    Steve,

    Canada is a Socialist country with a very collective minded culture. Although there used to be a politics of the center in Canada, it has vanished as the regressive left has swallowed the center and moved it far leftwards.

    There is universal health care in Canada, talk of universal Pharmacare, and the class war of the US, envy of the rich, and the sentiment to “eat the rich” has moved into Canada from the US… just look at the political battles at the Federal level and in Ontario.

    Bernie Sanders could easily be elected to president of Canada if he ran.

    The point is, Canada DOES NOT believe in inalienable Individual Rights, and certainly NOT property.

    Patent Rights? There are no such things, only incentives for economic activity for the benefit of the Canadian Public and the State. The ENDS are not the wellbeing and interests of the person who nominally has those “rights” but the Society who deigns to grant them by favor, to engineer social activity which are the ENDS of the permissions it calls “rights”.

    There should be no surprise that Canspeak from the CBC seems odds, collectivist, and missing the point of Patents and IP rights propery, The fact is Canada IS socialist, and to think otherwise is simply an error.

  2. Dan Hanson May 10, 2018 3:31 pm

    As an American who has lived in Canada for eleven years, I feel I should say that either Anon2 is either trying to prank the readers, or that s/he does not know what s/he is talking about.

  3. Anon2 May 10, 2018 4:38 pm

    DH @ 2

    I suspect we disagree and that’s fine. I will refrain from addressing the issue of whether you know what you is talking about by simply raising to your attention that Democrats even in the US ARE socialists AND do NOT believe in inalienable individuals rights and certainly not a Right to one’s property either.

    So either 1 you do not know what inalienable Individual Rights are, 2 you believe Canadians on the whole are more Right than the U.S. Dems, i.e. more American than half of Americans (left leaning), or 3 your accusation that I don’t know what I am talking about is, shall we say, misplaced.

    Again, if you’d like to talk substance please be my guest.

  4. Eric Berend May 10, 2018 10:31 pm

    @2., ‘Dan Hanson’:

    Canadian colleges are a hotbed of Marxist-centered curricula, collectivist sentiment and ‘far left’ groupthink and identity politics.

    If there are difficulties understanding the very concepts of private property and individual human rights, then why should that be any mystery?

  5. Dan Hanson May 11, 2018 7:00 am

    @3 & 4. Wow. The ignorance about your “Neighbour to the North” is truly breathtaking. It seems to be clear that your remarks were in earnest rather than in jest, so it would appear that whoever is your “source” of “information” about Canada is not being honest with you. We could probably start by discussing the Canadian Charter of Rights and Freedoms, but would there be a point to it? There is little benefit to be obtained from trying to educate those who do not wish to learn.

    If we just want to talk about patents, I can say that I have been mostly impressed with work of CIPO examiners. Canadian patent practices are similar in many respects to US practices, but there are some interesting differences, and both the US and Canada could learn a thing or two from each other.

  6. Anon2 May 11, 2018 10:27 am

    Dan@5

    What Canadian media say about their own politics (Doug Ford, brother of famous former Toronto mayor Rob Ford is running for governor of Ontario):

    “Ford streaks ahead in polling despite dirty tricks that include descriptions of him as a Canadian version of Donald Trump. This is both insulting and false: Canadian conservatives like Ford are to the left of the Democrats South of the border.”

    to the LEFT of Democrats…

    4rth paragraph of

    http://business.financialpost.com/diane-francis/doug-ford-will-win-the-ontario-election-and-he-will-be-a-breath-of-fresh-air-to-all-of-Canada

    Let’s discuss the Canadian Charter of Rights and Freedoms. For that it purports to be, THIS is the bottom line:

    “The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily (“notwithstanding”) countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time.”

    https://en.wikipedia.org/wiki/Section_33_of_the_Canadian_Charter_of_Rights_and_Freedoms

    In the end, the so called “rights and freedoms” are permitted “by favor” of the legislature, only so long as they happen to decide NOT to pass a new law abridging or violating them… and when it does decide to do so, it need only surpass the onerous hurdle of including a section in that law clearly specifying which rights have been overridden.

    Inalienable individual rights… not by a LONG shot.

    As for Canadian patent law, from what I hear that executive branch (CIPO) has gone rogue for some time now, it explicitly stated (perhaps not publicly) it is not bound by court precedent. The only reason it stays hush is the socialist culture and the naïve trust in government. Things might have changed recently but I am not aware of it.

  7. Benny May 13, 2018 8:17 am

    Anon2 – ” include descriptions of him as a Canadian version of Donald Trump. This is both insulting and false: ” I think that statement says as much about Trump as it does about Ford.
    Incidentally, I’m not overly impressed with the CIPO website.

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