Evidence of meeting #62 for Finance in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was clauses.
A video is available from Parliament.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
No, I think Mr. Caron has a comment.
We can deal with them as a lump unless other committee members have concern.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Can we have a recorded vote to apply to all. Is that possible?
Conservative
Conservative
The Chair Conservative James Rajotte
Okay, we'll have a recorded vote on clauses 102 to 131.
(Clauses 102 to 131 inclusive agreed to: yeas 6; nays 3)
(On clause 132)
I will move to clause 132. I have two amendments there. I have NDP-1.1 and PV-1. We will now move to NDP-1.1
Sorry, colleagues, I should have pointed out, NDP-1.1 applies to PV-1, and as was agreed to by the committee, Ms. May will be allowed one minute to speak to each of her amendments.
I will hear from the NDP first, and then other members, and then Ms. May will be allowed to speak to her amendment, as both amendments will be dealt with together.
Mr. Cullen, please.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Thank you, Chair, and welcome, Ms. May, to the committee.
We have two amendments to this section. Both are based on concerns that were presented at the industry committee. Of course, members at this table were not present at those hearings because of the process the government is using, which makes all of this a little more difficult. Particular concerns were expressed there about what would happen to patent regimes in Canada, such as increased litigation costs for Canadian companies, and trying to sort out this piece of legislation which, again, we believe is presented poorly in the midst of an omnibus bill.
There is a due care requirement and an alleviation of that requirement that caused a number of concerns to those who work in patent law. Again, if we're going to call witnesses and listen to experts, then they should be affecting the legislation we're drawing on.
The amendments we've provided here today, according to the witnesses we heard, provide more legal certainty and reduce the amount of litigation, not only for Canadian businesses but for the Canadian taxpayer who'll be fighting that litigation in court. If we're going to go through the process of hearing from folks who know a lot more about this than we do, then certainly we should be taking their testimony. At the industry committee, we found this was a very strong and consensual position. We drafted it into an amendment that was coherent with what was said by the experts in the field. That's what the amendment seeks to do.
Thank you, Chair.
Conservative
The Chair Conservative James Rajotte
Okay, thank you very much, Mr. Cullen.
I will move to Ms. May, then, for a one-minute comment, please.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
As Mr. Cullen was kind enough to welcome me to committee, I remind you all that I'm here because I've been summoned. Thank you very much. I'm sure you're all glad to have at least some gender parity around the table. A bit shocking, but anyway here we go, my amendment.
As Mr. Cullen suggested, you have had x evidence from patent experts. I draw my amendment from the advice you received on November 14 from the Intellectual Property Institute of Canada. This amendment to page 305 of the omnibus bill, proposed paragraph (b), says, just to give you the context, that the subsection is deemed never to have produced its effects if:
(b) the Commissioner determines that the failure occurred in spite of the due care required by the circumstances having been taken and informs the patentee of this determination.
This is exactly as Nathan was just saying, injecting uncertainty and standards that the experts in this field believe are going to cause difficulty. As the expert evidence from the Intellectual Property Institute pointed out, Bill C-43 changes the reinstatement procedure very substantially. I quote:
In some circumstances, reinstatement is only permitted upon a determination by CIPO that the applicant's failure to take action.... The due care standard is not mandated by the PLT. It is inherently uncertain and subjective.
On that basis, I hope you'll consider this amendment favourably.
Conservative
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
Thank you, Mr. Chairman.
If I could, Ms. May, you can hold your own in any gender parity discussion, I'm sure.
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
But perhaps from our experts here, my understanding of clause 132 is that what we're really dealing with here is an amendment that provides that the patent office must notify a patentee of a maintenance fee before the term of the patent may be deemed to have expired for non-payment of fees.
Do you want to expand on that a little?
Denis Martel Director, Patent Policy Directorate, Marketplace Framework Policy Branch, Department of Industry
Yes, thank you.
Indeed, there is a requirement for the Canadian Intellectual Property Office to notify a patent holder, or someone who has an application, of a missed payment. This a new requirement. The idea of due care is to show that every avenue has been taken. If, after receiving this notice, payment has not been made, it's integrated or included to avoid abuse of the extended period of time that is provided elsewhere on this.
Conservative
The Chair Conservative James Rajotte
Okay, thank you, Mr. Keddy.
Mr. Saxton, did you have a point on this?
Conservative
Andrew Saxton Conservative North Vancouver, BC
Chair, I just wanted to mention two short points. The first one is that the amendment is redundant, in our opinion, as the bill, in subclause 118(5) provides the authority to set out in regulations circumstances when the due care requirement does not apply, and furthermore, the second point, stakeholders will have the opportunity to propose options during consultations as part of the regulatory process.
Conservative
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Yes. I think that's an opening there. I'm hearing Mr. Saxton essentially suggesting that it's going to be at some further stage when the government is looking to do regulations to better define due care and better take in industries' concerns around this.
The question begs, why not put it into legislation? If at the worst it's redundant and it provides clarity and certainty around this question of the due care requirement, we're then at a bit of a loss why the government wouldn't simply support it. If the worst argument that can be made is that it's redundant, and the best argument in favour of voting against it is that we're going to do in regulations later on anyways, why not put it into law? This is, of course, always much more certain, especially for an industry that's working on innovation and development of patents, so we rest with the arguments that have been made and support those made by Ms. May.
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
Very quickly, I mean, that's not at all what clause 132 does. I mean, what it does is, where a patent is deemed to be expired for non-payment of fees, and that's the due care, this clause sets out the requirements meant to restore the patent rights. It's no more and no less than that.
Conservative
The Chair Conservative James Rajotte
Thank you.
We'll then go to the vote on NDP-1.1.
(Amendment negatived [See Minutes of Proceedings])
That vote on NDP-1.1 applies to PV-1 as well.
Shall clause 132 carry?
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Can we have applied recorded votes for the series of votes going through 144, Chair, if that's possible? Oh, excuse me, we have another amendment coming, so through to 136.
Conservative
The Chair Conservative James Rajotte
Is that okay with you, Mr. Brison, to do 132 to 136 as a recorded vote?