Evidence of meeting #30 for Industry, Science and Technology in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was vote.
A recording is available from Parliament.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
I would imagine that your advice to a Canadian company talking to you would be to file a patent in Canada, but to also file for that same patent in the U.S., the U.K., China, and India, if they plan on actually going global with their product. Is that right?
Director, Policy, International and Research Office, Canadian Intellectual Property Office, Department of Industry
That is entirely a business decision. We do not provide that advice, but it is driven by the size of market, as we have heard.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Okay.
On the bottom of that chart, you'll see the numbers go from 1.11% down to 1.00% from 2005 to 2010. If you were to adjust those worldwide numbers for China—you talked about the increasing number of patents for China—would that look more even? Has that been done?
Director, Policy, International and Research Office, Canadian Intellectual Property Office, Department of Industry
I do not have the figures currently, but if, as you've mentioned, you remove the surge in Chinese applications, you will notice that the number will be rather stable and that, indeed, as part of the total stock of patents in force, the Canadians have held their own. It really is just a matter of the denominator growing.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Would it be possible for you to provide that information to the committee at a later date? I'd be curious to see it. It's a pretty simple calculation, but it might affect the look of those numbers.
Director, Policy, International and Research Office, Canadian Intellectual Property Office, Department of Industry
We can certainly do that.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Perfect. That would be great.
I want to get to the process, in a sense, of applying for a patent and the impact, or what it means, for a business. I don't know enough. I'm not an expert who can understand this process you talked about in which a company applies for a patent, there's disclosure of information to kind of have that balance you spoke about, and then another company can build on that. How does that work? To what extent can another company innovate further and then get another patent? What are the parameters around that?
Agnès Lajoie Assistant Commissioner of Patents, Canadian Intellectual Property Office, Department of Industry
I'll give you an idea of the process. An applicant files in Canada and applications are laid open 18 months after. So the information on the invention is open to the public. But at that time the patent is pending, so there's some uncertainty as to whether or not it's going to end up as a patent. Eventually for a firm to use the information and develop further, there's some kind of a risk there, because if it eventually becomes a patent...you don't know.
What happens is that applicants, as Sylvain mentioned before, have up to five years to request examination, so the application that is pending is eventually examined by the patent examiners to determine whether it complies with the requirements of the Patent Act. This process depends—because it's an intuitive process in the sense that sometimes an application can be allowed and granted eventually when it's examined the first time. But there can be many multiple iterations between the patent examiners and the applicant to determine the scope and whether or not it meets the requirements of the act. During that period of time, companies interested in the invention may keep an eye on the invention and the evolution, but if they use it, there's always a risk, up until they know for sure whether it's a patent or the application is abandoned or not granted to the applicants.
I hope this answers your question.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
It kind of does. I got a little more information. It's like drinking from a fire hydrant.
I guess the question I would have is this. What information is available? When you say that they file and the information is available, what information do you mean?
Assistant Commissioner of Patents, Canadian Intellectual Property Office, Department of Industry
It's required under the act that the invention be described to allow a person skilled in the art to reproduce it. It is very important, in fact, to make sure that people in the field with sufficient knowledge can reproduce the application.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
They could reproduce it, but they can't use an identical product. To what extent can they improve on that product to the point where they could use it?
Assistant Commissioner of Patents, Canadian Intellectual Property Office, Department of Industry
Again, it's incremental. It depends. They're minor improvements.... Each case is different. What happens, also, is that the licensing discussion can happen. So if you incrementally improve an invention, you may be able to use that improved invention based on the agreement you have with the pioneer of the first invention. Each case is so different. There are different nuances and different levels of improvement.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
If you get a new patent on that incremental improvement, does that prohibit the original company, who might have been working on a similar improvement from using that as well?
Assistant Commissioner of Patents, Canadian Intellectual Property Office, Department of Industry
It could potentially.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Right. Okay.
I could ask so many more questions, but I'll close.
Gerard, you've given us some questions we might consider asking as we move forward in this study. For example, as we're looking for independent experts to invite to the committee, what organizations and what people are out there in Canada who could be considered independent experts we might want to consider inviting?
Conservative
The Chair Conservative David Sweet
You would have to submit that to us in writing, or at least mention it to somebody else who questions you at a later time. I'm sorry. Again, we have to stick with the time.
Now on to Mr. Regan for seven minutes.
Liberal
Geoff Regan Liberal Halifax West, NS
Thank you, Mr. Chair. I also want to thank the witnesses.
My first question is for Mr. Laporte.
I have a very practical question based upon a problem from a constituent of mine who called my office in view of the fact that, in Nova Scotia, massage therapy is not regulated. The provincial government hasn't passed the laws that say you have to have the body and be a member of it and so forth. There are three recognized professional associations.
Whereas in Ontario it is regulated by the provincial government, and the College of Massage Therapists of Ontario trademarked the phrases “massage therapist”, “registered massage therapist”, and “therapeutic massage”. It licensed one of the three associations in Nova Scotia—I think you see where the problem is starting to develop—and the others can't use those words. How is it that a body that is limited provincially can obtain an official mark for a profession that applies nationally? This jurisdictional issue is very problematic, it seems to me.
How does it have the right to license an official mark to organizations in different jurisdictions who have jurisdiction over this kind of thing, over what they're doing, over this profession? It isn't federal. Are there any avenues for objection to an official mark or the licensing thereof across the country? I see a real problem with having given a trademark in this way that can apply nationally.
Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, Canadian Intellectual Property Office, Department of Industry
That's a good question. The answer is quite complicated. We can probably speak off-line if you want to look at the details. I want to leave you with a few tidbits of information.
One, when we grant a trademark it has a national scope. Two, official marks are trademarks that we grant when there is, for example, a government requester, and those we approve by default. So there are very few tests to be done for any kind of mark related to a city, an official organization, a coat of arms for les Chevaliers de Colomb, or something of that nature. By law they're official marks and they have to be approved. It may cause some issues.
Three, when we look at approving trademarks, even official marks, we try to ensure we don't give national coverage to one region that may infringe on another region's similar demands. So without knowing the details, I would like to think that when we approve the trademark in Ontario that the word “Ontario” appears somewhere to limit the trademark.
Liberal
Geoff Regan Liberal Halifax West, NS
My understanding is that it doesn't. They have the words “massage therapist”, “registered massage therapist”, and “therapeutic massage” for Canada, and yet it's the Ontario College of Massage Therapists. It's very problematic, obviously.
Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, Canadian Intellectual Property Office, Department of Industry
We need to look at the details for that one, unfortunately.
Liberal
Geoff Regan Liberal Halifax West, NS
It seems odd to me. I don't know if it's a problem. You don't have the option, I presume, of issuing an official trademark that isn't national in scope, is that right? Or can you say, we're going to give it to you, but only limit it to the jurisdiction in which you are authorized by your provincial government?
Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, Canadian Intellectual Property Office, Department of Industry
I'm not aware of such a limitation.
Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, Canadian Intellectual Property Office, Department of Industry
No.
Liberal
Geoff Regan Liberal Halifax West, NS
It seems to me you should have that option, arguably. At least it's certainly worth examining. The alternative is obviously not to issue it at all because of the problem that's been created in a case like this. Is it possible to retract a trademark if you have a problem like this and you recognize you may have made a mistake?