On April 26, 2018, the Government of Canada unveiled its long-awaited intellectual property (IP) strategy, through which the government intends to increase IP awareness and foster an ecosystem that supports business growth, innovation and competition.
The government recognized that IP is a valuable business asset and an IP strategy is critical in helping companies and national economies grow and succeed in the global knowledge economy. It also recognized that despite Canada’s strength in research, science and innovation, it has traditionally had a poor track record of building global players based on innovation. While the local start-up scene in several areas of Canada has been buoyed by the growth of accelerators and innovation hubs, Canada generally lags behind similarly situated economies in global IP filings. For this reason, the strategy also looks to support commercializing Canadian innovation.
The strategy results from months-long consultations, which ended in July 2017. Through its consultations, the government learned, among other things, that there was weak IP literacy among Canadians and that cost and complexity was seen as a barrier to Canadians accessing the IP system.
The IP strategy purports that, over the next five years, the government will be working to ensure that Canadian businesses, creators, entrepreneurs and innovators have access to the best possible IP resources through a three-pronged approach:
- Legislative reforms to address perceived gaps in IP legislation
- Initiatives to improve IP awareness, education and advice
- The development of tools to help firms cut the cost and complexity of accessing the Canadian IP system.
The highlights of the strategy include:
- Changes in legislation to address “trade-mark squatting”, namely (i) the ability to rely on “bad faith” as a basis to oppose a trade-mark application or invalidate a registration, and (ii) requiring trade-mark owners to have used their trade-mark in order to enforce it within the first three years after registration. The precise nature of the requirements, and their effect on enforceability of a trade-mark, are still unknown. However, this is a significant development. The Canadian trade-mark bar has consistently called for efforts to address these issues since the introduction of changes to eliminate the “use” requirement to obtain a Canadian trade-mark registration. It is expected that those changes will come into force in 2019 and that any additional requirements the IP strategy envisions will also come into force at that time.
- Proposed changes to the Patent Act, including amendments to set new minimum requirements for demand letters from patent holders to discourage the sending of deceptive and/or vague letters.
- Amendments aimed at affirming that there is no infringement when conducting experiments that relate to the subject matter of a patent.
- Legislative changes to exclude settlement demands from the copyright notice and notice regime.
- Additional funding to hire more Federal Court judges to streamline IP dispute resolution and for program management to reduce delays in copyright tariff setting at the Copyright Board of Canada.
- Setting up a pilot “patent collective”, bringing together small to medium-sized firms through a membership model. A third party will be selected to work with the firms to promote IP best practices, provide patent intelligence and support, and obtain access to patents to help remove barriers to firms’ growth.
- Establishing a dedicated team of government IP advisers to ensure government program officers have the knowledge and capacity to address IP issues and guide program recipients to improve their IP knowledge.
- Establishing an “IP Marketplace” portal for businesses and innovators to identify and access IP held by government and academia that can be licensed and/or commercialized.
- Creating a governance regime for patent and trade-mark agents (a College of Patent and Trademark Agents) to ensure that professional and ethical standards are maintained.
- Funding for the Standards Council of Canada to enable it to work with Canadian companies to ensure their patented technologies are included as part of global standards.
- Funding for initiatives to support participation by Indigenous Canadians in discussions about IP and how it interacts with traditional knowledge and cultural expression.
- Funding support for IP legal clinics, which will assist small business and start-ups.