Thank you to the committee.
It's always a pleasure, as an academic, to be able to talk to the people who allocate the funds to the research agencies that fund my research, and I'm happy to give back. I feel it's a part of our mission to assist government committees whenever possible.
To tell you a little bit about who I am, I have about 20 years' experience in IP and innovation, both as a practising lawyer in Toronto in the technology area, and then as an academic at the University of Western Ontario, and for the last 11 years at McGill University, where I am the James McGill chair in the faculty.
I work in the area at the intersection of patents and innovation, and have provided advice to the World Intellectual Property Organization, the Organisation for Economic Co-operation and Development, the World Health Organization, UNITAID, both federal and provincial governments, and university tech transfer organizations in Canada and the United States. I've met with House of Representatives members and the Senate in the U.S. on innovation matters. I've been involved in traditional education in Canada, France, and the U.S., and I teach regularly in France. In fact, in August I will be meeting with similar high-level decision-makers in France to look at the issue of collaborations.
I come to you not with any particular agenda, but to share the result of our research in some areas where this committee may want to look.
I have two things I want to bring up. One is building the capacity of some of the institutions that administer IP, particularly the Canadian Intellectual Property Office, and giving it a little bit more power to determine the scope of patent law. I'm going to be concentrating on patent law today.
The second thing I want to bring up is looking at building incentives to help build collaborations and partnerships that develop IP in Canada, which can be used to build the complementary assets that are necessary to make the IP system work.
I submitted a brief, but I'm not going to go through it.
To start with, Canada meets all international obligations. We could still discuss whether we should have more or less, but the bottom line is that we're not in violation of any rules. We fall somewhat in the middle of the pack, except in patent law. In patent law, in fact, I would argue that, except in a couple of areas—not necessarily insignificant areas—we are actually ahead of many countries in terms of the protection of the patent holder. This is in comparison to the United States.
First of all, the criteria to obtain a patent are generally lower in Canada than in the U.S., if you look at what the courts say. There are fewer reasons to invalidate a patent in Canada than in the United States; they have a whole bunch of rules around estoppel and clean hands. We have no jury trials, which set confusion within patent litigation in the United States, whether you're prosecuting or not. We have a better selection of damages. The United States only allows damages and treble damages. We allow damages, and punitive damages—that would be the equivalent of the treble—but we also allow accounting of profits, which is something that does not exist in the U.S. system. It is a very powerful tool to patent holders because it makes the other side open their books, not the patent holder. In addition, our provinces are subject to patent law. In the United States, in fact, under their constitution, the states are not subject to patent law unless they pass special legislation, and not all have.
For all of those reasons, there are many areas within patent law where we actually have higher standards from the point of view of a patent holder. Having said that, though, patents are really only one of many factors necessary to create an innovation system. So while we have strong patent laws, we've neglected many of the other things, the complementary assets that make innovation possible, such as having home-grown ability to enter into distribution channels; bundling different types of technology to be able to buy it and put it together and have the science to be able to do that; expertise in taking innovations through the regulatory system, not only in Canada but internationally; and of course financing.
We spend a lot of time talking about patent law, looking at the minutiae, and saying, “Well, in this one little area, we're not as good as them”, ignoring the big picture, which is that you can fiddle around all you want with the patent system, but if you don't concentrate on the complementary assets, you don't have an innovation system.
Let me talk about the two things I mentioned, investing and institutions. Patent law is complex, rather like the Income Tax Act. Having either Parliament or even, by regulation, the government act often throws more confusion into the mix than anything else. When we look at the notice of compliance linkage rules, every time those are changed, litigation is spawned, and this creates more uncertainty than not.
One of the bodies best able to deal with patent law is the Canadian Intellectual Property Office. But under a decision of the Federal Court of Appeal last fall they basically have no policy function. They had made a policy around the Amazon.com “one click” patent, and the court told them they didn't have a say in this. Given that they are closest to what's happening in the world of innovation and patent law—they can follow what's happening in the United States—they should be given more authority to make certain fundamental policy decisions.
On top of that are the courts. We do our best in Canada, but we only have one sitting judge with any substantial experience in patent law, and he'll be retiring in two years. We don't need a speciality court—we don't have enough patent cases—but we do need judges who have patent experience to be appointed to the bench and we need more training.
Finally, we need to build the complementary assets. The only way to really do that is to build collaborations in which Canadian universities, industry, finance, and so on work together in collaborations.
We have a few examples. I mentioned some in my brief: the Structural Genomics Consortium and CRIAQ in Quebec. Those collaborations not only allow for the creation of Canadian IP, but of knowledge about how to get through the regulatory system, and they bring them and the other assets into conjunction with university research.
We could also use that effort to build policies about not only having patents created in Canada but seeking patents in key areas of innovation in which we're interested that are held by Canadians under some funding mechanism whereby we can leverage the patents in order to attract further investment.