part two: Made in Canada


When you hear “Made in Canada” you might think of someone at a mall, checking the label of the thing they want to buy.  Does this apply to Intellectual Property (IP)? Does it apply to patents?

 It does.  Can Canada develop and execute a Made in Canada strategy that improves our IP competitiveness, and brings an increased value from our research to Canadian society?  It can.  Many pieces have to be put in place, but the fundamental base of innovation is there. We “just” have to build on it.  We have to develop a model that increases the value of our investment.  It is time to work harder at a system and strategy to retain the spoils of innovation within Canada.

Statistics and pundits tell us Canadians are highly educated and innovative.  Pundits also tell us Canada is less successful at capitalizing on these attributes for the betterment of society.  It seems quite reasonable to want innovations developed in Canada, maybe with the aid of publicly funded research, to benefit Canadian society, where a benefit would include the creation of jobs and, ultimately, the retention of profits within Canada.

where are we now? how do move forward?

Part One of this series considered the problem of so-called innovation leakage i.e. the movement of intangible assets, think patents, to non-Canadian entities that partially funded the initial research.  I proposed Canadian private capital could invest in the research and innovation that many want to protect.  It could partner in the development of IP.  It could retain the IP in Canadian hands.  It could bring innovation back to Canada.  This vision leads directly to a Made in Canada solution.

It was previously argued a Made in Canada solution does not exist because IP is a function of jurisdiction, and one wants IP in non-Canadian jurisdictions.  I suggest the jurisdiction of the asset does not matter.  The owner of the asset matters, the quality of the asset matters and its relevance matters.  These are all in our control.

Bringing ownership back to Canadian hands was considered in Part One.   What about quality and relevance?  Both of these are important aspects of a patent’s value, where value might generally be considered as the ability to “protect” important aspects of technology within a product, and thus, any revenue stream therefrom.  Quality will include things such as filing details, Claim breadth and supportability, and accurately capturing the technology.

Relevance is a component of quality, but it needs to be singled out, because it is often overlooked.  A relevant patent captures a differentiating aspect of a product and the associated revenue stream i.e. it protects the bit of technology that differentiates the product.  It is considerably more important than a, possibly, random idea that arose.  Make no mistake, anyone who has reviewed portfolios has seen their share of random patents.  Quality and relevance are cornerstones of a Made in Canada solution.  It is time to set these stones.

step number one: education

The notion of enhanced, expanded and improved education in IP matters has gained momentum over the past year.  This includes, for example, an article at CIGIOnline entitled “In an Arms Race of Innovation, Intellectual Property Is Critical ” and the recent “Intellectual Property in Ontario’s Innovation Ecosystem (see pg. 27-32).  I fully agree with the overall thrust of these discussions.  More people need to appreciate IP and patents.  However, these documents only provided limited thoughts around the  sorts of required knowledge.  In this case any education may simply address the “bureaucracy” of patents, which is the current approach to IP education.

When I say bureaucracy I am thinking of the legal nuts & bolts of IP.  Basic considerations around obtaining patents and IP strategy such as disclosure, types of filing, jurisdictions, priority and basic concepts of infringement and validity would all be there.  These are all fundamental legal aspects of patents.  They are important concepts, but they are not the only concepts.  They may be considered a first level of education.  They are also part of the current education paradigm.  To set the stones, we need to build on the first level.

Earlier in 2020, I listened in on a CIPO webinar introducing IP to Canadian startups.  There were some fumbles here and there, including discussion around patentability searches, but that seemed minor.  I came away with two overall impressions of the talk.  First, it was very dry.  The presenters did not show any passion for the information.  They seemed to simply go through the slides.  Second, there was too much information.  The slides were too dense, there were too many statistics.  Simply too many details for an introductory talk.  In the end, the details did not sink in, and I was not inspired to go out and obtain IP.

CIPO is not alone.  Detail heavy, passion light talks are typical for law firms also.  If Canada wants to educate companies and inventors about IP there has to be much greater effort to focus and strengthen the message.  Patents must be brought to life.

IP eduction has to be relevant, relatable and realistic.  One might say these are the 3R’s of IP education.  IP in general and patents in particular must be made relevant to stakeholders.  Attendees need to see themselves as inventors.  They need to say “that could be me”.  This requires realistic and relatable examples that the audience can make sense of.  A fictitious example from a topical technology space would fulfill the purpose.  One could then creatively work through patent drafting and IP strategy within this space.  One could even bring in a related technology for context.  It is doable; you “just” have to understand technology and be creative.

A patent discloses and seeks legal protection for an aspect of technology.  So, technology is a big part of patents and IP strategy.  That can not be stressed enough.  Unfortunately it is often overlooked.  Neither of the above articles considering education spoke to the relevance of understanding technology.  The strength and relevance of the patent very much hinges on the understanding of, Claiming of and vision for the technology.  There are far too many patents that have a diminished value because they do not properly Claim the technology or they fail to see the root of the invention as opposed to the particular implementation.  The moral of the story; we have to recognize, understand and discuss the importance of the underlying technology in a patent.  Our IP education needs to address this, so inventors see patents as offshoots of their technological developments.  They need to think about their innovation from a patent PoV.  An education about bureaucracy, with all kinds of statistics does not do this.  The education has to speak an inventor’s language.

Education is critical at this juncture.  That is something on which all can agree.  We will have a better outcome if we follow the 3R’s.  The education must be relevant, relatable and realistic.  Else it will not inspire those charged with inventing, with creating the content for IP.  We need to bring patents to life.  It is when we create inspiration around IP concepts that the value of the IP is enhanced, the value of the assets is increased and we can work towards a Made in Canada solution.

The final step is improving the perception of IP.  That is Part III.