Good morning. Thank you.
I'm not going to read my prepared remarks with the illusion that they're different from what you've already heard, because it's exactly the same talk that Amrita Singh provided, so I'll keep it brief.
I'm David Schwartz. I'm a partner at Smart and Biggar. I'm the president of the Intellectual Property Institute of Canada. I'll speak a little about the Patent Law Treaty and how it's handled under C-43. My colleague Steve Perry is going to speak about industrial design, essentially the same thing you've heard, round two.
Thank you for the invitation to appear today.
IPIC is the professional body in Canada, the association of patent agents, trademark agents, and lawyers practising in all areas of IP.
We're very pleased to speak to you today, and we are very supportive of the government's work on PLT. It's a good treaty that helps prevent minor mistakes from resulting in loss of rights in patents.
I'll emphasize a couple of quick details. Much of the key stuff is left to the regulations; we know that and we want to emphasize the same two points you've heard.
First, this business about reinstatement of deadlines. Currently under the law, as we've heard, you have an absolute right, you pay a fee, and you revive an application if a deadline is missed. This happens routinely. The way the PLT is being implemented, there's a due care standard. Has the applicant, the patentee, exercised all the due care required by the circumstances? We're hopeful that in the regulations there is going to be a period where this isn't going to be required, and that you'll be able to revive the case as a right, pay your fee, and carry on. We don't know what “due care” means. The patent office is going to have to assess due care. Later on the Federal Court can review due care to see if it's been properly exercised.
It creates a lot of uncertainty, and I expect there's going to be a good opportunity in the regulations to fix a case without due care, and this opportunity will be added later. But certainly we're of the view that putting this in the mix early on is problematic and creates a lot of uncertainty.
Second, as we heard, intervening rights are new to the patent law. We've never had a situation where, during a temporary period of abandonment, someone else could start practising the invention, thinking there will be no patent; and then later on the patent is revived. The law is going to require that these intervening rights involve a good faith use. There's language in here about having made serious and effective preparations to commit the infringing act.
These are all things the courts are going to have to explain to us in detail. It creates a lot of uncertainty. Again, we're hopeful that at the regulation-making step, there's going to be an opportunity to revive an application or reinstate it and cure the missed deadline before there's a possibility of intervening rights. It will provide certainty, and it's a reasonable thing to do. I expect that's what we'll see when the regulations are promulgated, and we look forward to working on that.
Third and last, we're very pleased the government is taking an interest in IP. That's a great thing. IPIC is doing backflips over that. We're very happy to see the government working on this. There's more to be done. We've made proposals about the protection of confidential communications between agents and their clients. There's a law of double patenting, and we look forward to working with you on these things in the future, if the opportunity arises.
I'll turn the floor over to Steve, and thank you.