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Wednesday April 03, 2013 |
Appeared in the Toronto Star on March 23, 2013 as Policy Laundering Lies Behind Ottawa's Support for Trade Treaties
Last week, the House of Commons Committee on Industry, Science and
Technology released its long-awaited report on intellectual property in
Canada. The report was the result of months of study with witnesses
representing a wide range of industries from pharmaceuticals to
universities to entertainment software all making the trip to Ottawa to
provide the committee with their views on what works, what doesn't, and
what needs reform.
While most of the recommendations are fairly innocuous - the committee
identifies many issues for further study - one recommendation involves a
classic case of policy laundering as the government has manufactured
support for provisions found in two major proposed trade agreements that
were not even raised by the witnesses that appeared before the
committee. The report recommends:
that the Government of Canada (in order to support Canadian
businesses on the global stage and ensure the administration of Canada's
IP regime is internationally compatible and streamlined) ratify the
following key international agreements: the Patent Law Treaty, the
Madrid Protocol and Singapore Treaty for trade- marks, and the Hague
Agreement for Industrial Designs.
The NDP picked up on the inclusion of the recommendations without any
debate, discussion or actual study, noting in its minority report that
As the Committee heard no testimony on the Patent Law Treaty, the
Madrid Protocol and Singapore Treaty for trade-marks, and Hague
Agreement for Industrial Designs, New Democrat committee members are
surprised by the inclusion of a recommendation regarding these treaties
in the majority report. The Committee should seek more information
before pronouncing on such treaties.
So why did the government representatives on the Industry committee
include a recommendation to ratify four international treaties that were
not discussed during the committee?
The answer likely lies in the Canada - EU Trade Agreement and the
Trans-Pacific Partnership, the two prospective trade agreements that top
the government's current trade agenda. According to leaked documents,
the Canada - EU Trade Agreement includes provisions that require Canada
to make all reasonable efforts to comply with the Singapore Treaty and
the Patent Law Treaty as well as accede to the Madrid Protocol and the
Hague Agreement.
There are similar requirements in the Trans Pacific Partnership as
leaked documents indicate that it includes provisions that require
countries to ratify or accede to the Madrid Protocol and the Singapore
Treaty as well as make reasonable efforts to ratify or accede to the
Patent Law Treaty and the Hague Agreement.
These treaties would require significant legal reforms in Canada. In
the case of the Singapore Treaty and the Madrid Protocol, the procedures
associated with Canada's trademark laws would face an overhaul, which
the Intellectual Property Institute of Canada has noted would benefit
only a small number of trademark holders.
The other two treaties also create new procedural requirements, with the
Hague Agreement for Industrial Designs establishing a system for
registering industrial designs in multiple countries with a single
application and the Patent Law Treaty seeking to harmonize formal
procedures such as the requirements to obtain a filing date for a patent
application, the form and content of a patent application, and
representation.
These treaties might make sense for Canada, but it is hard to know
without careful study. Instead, the committee has simply recommended
their ratification - and the all costs associated with doing so -
without any debate or analysis. That represents a case of policy
laundering designed to fabricate a record of support for the four
treaties. Should Canada reach agreement on CETA or the TPP, the
government will presumably use the report to claim support for the
treaties that did not really exist.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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Tuesday March 19, 2013 |
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The Standing Committee on Industry, Science and Technology released its report on the Intellectual Property Regime in Canada
yesterday. The report is the result of lengthy hearings that focused on
a wide range of IP issues including patent reform, trademarks,
counterfeiting, and pharmaceutical protection. While most the
recommendations are fairly innocuous - the committee identifies many
issues for further study - there are essentially three main legislative
reform recommendations. One involves limiting the scope of official
marks, which appears to be the result of comments from Dalhousie law
professor Rob Currie (echoed by CIPO's Sylvain Laporte) expressing
concern with governmental abuse of official marks in a way that may
stifle innovation.
The other two are
particularly interesting as they set the stage for the Canada - EU Trade
Agreement and the Trans-Pacific Partnership. First, the report recommends anti-counterfeiting measures similar to those
required by CETA and found in Bill C-56. Should criticism arise over
Bill C-56 or CETA, the government will likely point to this report in
support.
The second involves a
classic case of policy laundering as the government has manufactured
support for CETA and Trans-Pacific Partnership (TPP) provisions that
were not even raised at committee. The report recommends:
ceta, counterfeiting, indu, ip, patent, tpp, trademark Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday March 19, 2013 |
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Tuesday January 22, 2013 |
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The European Commission hosted an information session
for non-governmental groups on Europe's current trade negotiations. The
Canada - EU Trade Agreement was the first discussed. Both Ends, a Dutch
NGO, reports
that European officials indicated that they are still unhappy with the
Canadian position on copyright and patents. While the disagreement of
patents for pharmaceuticals is well known, Canadian officials had
indicated that the copyright provisions were completed.ceta, copyright, ip, patent Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday January 22, 2013 |
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Thursday November 22, 2012 |
Appeared in the Toronto Star on November 18, 2012 as Supreme Court Serves Stunning Reminder of the Patent Bargain
The House of Commons Committee on Industry, Science and Technology has
spent the past few months hearing from a myriad of companies on the
Canadian intellectual property system. With few public interest groups
invited to appear, one of the primary themes has been the call for more
extensive patent protections, as witnesses link the patent system to
innovation and economic growth.
While policies that purport to help the economy unsurprisingly generate
considerable support, the Supreme Court of Canada recently provided a
powerful reminder about the true purpose of patent law in a decision
involving Pfizer's patent for Viagra, the well-known erectile
dysfunction medication. Teva Pharmaceuticals, one of the world's leading
generic pharmaceutical manufacturers, had lost successive challenges
against the Viagra patent, but managed to pull out a win when it
mattered most.
Proponents of extending patent law often focus on the benefits of
encouraging innovation that may come from offering patentees exclusive
rights to their invention, yet the foundation of the law is about
striking a balance between public disclosure and exclusive rights to the
invention.
The law includes disclosure requirements that mandate that the patentee
"correctly and fully describe the invention." In this particular case,
Pfizer failed to actually describe which chemical compound was
effective. This led the trial judge to remark that the disclosure "plays
games with the reader."
The Supreme Court was seemingly in no mood for such games as it reminded
the parties that the patent system was based on a bargain that Pfizer
had failed to meet. In a paragraph that is likely to be quoted for many
years, the court stated:
"The patent system is based on a ‘bargain', or quid pro quo: the
inventor is granted exclusive rights in a new and useful invention for a
limited period in exchange for disclosure of the invention so that
society can benefit from this knowledge. This is the basic policy
rationale underlying the Act. The patent bargain encourages innovation
and advances science and technology."
Disclosure is therefore a crucial part of the patent bargain. The court
clarified that this involves not only a description of the invention and
how it works, but rather a much more practical level of disclosure "to
enable a person skilled in the art or the field of the invention to
produce it using only the instructions contained in the disclosure."
In this case, the court found that Pfizer failed to provide sufficient
disclosure, since the pharmaceutical giant "obscured the true
invention." Pfizer argued that this should not result in invalidating
the patent, but a unanimous court found no other alternative. The
immediate effect is that the Viagra patent is therefore voided in
Canada, which will allow for generic substitutes.
While some have tried to downplay the significance of the decision - the
Viagra patent was scheduled to expire in 2014 and Pfizer filed a motion
last week for a rehearing - the real importance lies in the court's
unequivocal assertion of the need for balance in the patent system and
the broader societal benefits that must accrue in return for patent
protection.
Innovation is a laudable goal, yet the court has reminded Canadians that
it is only part of the patent equation. Pharmaceutical companies will
undoubtedly continue to lobby for more extensive rights before
Parliamentary committees and in trade agreements, but the policy focus
from governments and courts should be on ensuring that the "patent
bargain" remains intact.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
patent, pfizer, teva, viagra Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday November 22, 2012 |
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