Debates of Feb. 10th, 2005

Quarantine Act

[An hon. member]

Canoes.

[Réal Ménard, Bloc, Hochelaga, QC]

Canoes are not used quite so much.

All that to say that the SARS crisis was a real revelation. We did not realize that there could still be major sources of infection, and that virology could attain mass proportions.

The minister responsible for the Public Health Agency of Canada—which we will fight to our dying day because of its intrusions into provincial jurisdictions— knows that one of the characteristics of the public health variables at the present time is that 85% of new illnesses discovered have an animal connection. It is important to keep this in mind.

That said, Bill C-12 enables the Government of Canada to do certain things without its jurisdiction being contested. I must digress for a moment, because there is a problem, unfortunately, with the Public Health Agency of Canada in regard to jurisdiction. The officials and even the minister, my friend the member for St. Paul's, know very well that there is a potential for intrusion because public health, on the face of it, is under provincial jurisdiction.

If we are talking about care for Native peoples or veterans, then we acknowledge that there is no possible encroachment. Constitutionally, this jurisdiction is valid, recognized by the courts.

Let us talk about patents, for example. I hope that, one day in this House, my colleagues will realize just how much I have considered this matter, just how balanced my opinion is and just how important it would be, before long, to be able to have a debate on the new realities with regard to evergreening.

As a result, when it comes to quarantines, patents, veterans and aboriginals, for which the federal government is the trustee, there is no problem with infringement on areas of jurisdiction. When it comes to public health, there is a real potential for this to happen, so the Bloc Québécois will have to be extremely vigilant.

Before I come back to the Quarantine Act, I want to provide a little background.

I mentioned earlier, with a certain amount of pride, that I was the senior member of the Standing Committee on Health. I thank my leader, my whip and my House leader for entrusting me with this responsibility. We considered the bill on new reproductive technologies, to which our Conservative Party colleague alluded. When I read the first version of this bill, I immediately sounded the alarm, since this seemed to me to be a clear case of infringement. In fact, where are infertility treatments provided? Obviously, in clinics and hospitals. This was a clear infringement.

We must remember that 71% of Quebeckers are dissatisfied with Jean Charest's government.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

It is 71.6%.

[Réal Ménard, Bloc, Hochelaga, QC]

It is exactly 71.6%, I am informed by the member for Marc-Aurèle-Fortin, who knows the Criminal Code backwards and forwards and who is as knowledgeable about opinion polls.

That said, the Jean Charest government is challenging the reproductive technologies bill in court. This is nothing to sneeze at, for this is not a government particularly known for standing up for the interests of Quebec. WIth all due respect, one might in fact call it somewhat spineless.

This is a kind of repeat tendency by the federal government to wish to interfere in areas not under its jurisdiction. It is not surprising to see them doing so in connection with health, since that is still the area of most concern to our fellow citizens.

I do not want to stray off topic, so let us get back to Bill C-12. As I have said, when it was introduced by the Minister of Foreign Affairs, it was Bill C-36. This bill concerns both human rights and public facilities.

It has been clearly established that the way people move around has changed, and people are in closer contact, so the potential for infection is greater. I am talking about mere proximity, nothing extreme. In public places, even this one, we are seeing requests to wash our hands.Every time we go in or out of the House, we take great precautions. We now realize that even shaking hands can transmit certain things, though not the flu. According to scientific knowledge, influenza is not transmitted by human contact, but is a virus that can remain active a long time.

Let me not get off topic again. Back to the bill. It will give the minister the authority to designate quarantine areas anywhere in Canada. We in the Bloc Québécois, our colleague from Laval in particular, brought in a dozen or so amendments so that the government would never be able to do this without consultation and input from the health authorities, those of Quebec in our case, but those of the other provinces as well.

Unfortunately, I regret to inform the House that our amendments were not adopted by the parliamentary committee. I do regret that. The bill would have been strengthened, without our challenging the federal government's jurisdiction, if a real partnership like that could have been established.

The bill contains another important provision: it creates quarantine officers. These are people found often, but not exclusively, in airports. They will carry out investigations and verify whether someone is a source of infection. I will come back to this issue later, but it looks like an intrusion. The potential for violations of privacy in this bill was quite real. It was so real that the members of the committee felt the need to have the Privacy Commissioner testify. That was the Conservatives' idea. It was not a bad idea and we supported it. We did obtain a number of amendments, particularly concerning detention periods.

Happily or unhappily, I shall conclude by speaking of the number of quarantine officers and we will also look at some criminal law concepts. The hon. member for Marc-Aurèle-Fortin will have some good memories of that.

The House will be pleased to learn that there are two quarantine officers in Halifax, four in Montreal, three in Ottawa, six in Toronto, three in Calgary, two in Edmonton and five in Vancouver, for a total of 25. The committee had this confirmed. We had debates on the issue. For example, the Association des infirmières et infirmiers du Québec could have seen health professionals as quarantine officers. Nurses could have performed the function, since they are familiar enough with the early signs of an infection.

In the bill, the minister chose to state that quarantine officers must be physicians. Is that a corporate bias? I shall refrain from judgment and each member can make up his or her own mind on this. Still, the fact is that quarantine officers, in terms of professional qualifications, must be physicians recognized by their own provincial governing body.

There also will be officers of various kinds, including environmental health officers. We understand that the Quarantine Act obviously applies to people entering or leaving Canada.

There will be an obligation, which already exists and has been confirmed, for all Canadian airports to be equipped with a site for examining people who may be infected or contaminated. This is nothing new. It is and will be the responsibility of airport authorities to provide space for this purpose.

At first glance, one might think this is a technical bill that has nothing to do with human relations or rights and freedoms. One might think the bill is not covered by the charter. We know we have a system that protects human rights. In 1982, the Charter of Rights and Freedoms was adopted in Canada. René Lévesque was opposed to this charter for two reasons. I do not want to get off topic, but Mr. Lévesque said that section 27 on the enhancement of multicultural heritage went against our plan for integration. Quebec has always believed in a common public culture, which, incidentally, began with the late Gérald Godin, MNA for Mercier. Mr. Lévesque was opposed to the charter, the constitution that was imposed on us. Remember the unilateral patriation, the night of the long knives, and all that? The constitutional context is indelibly marked on the collective memory of Quebeckers.

Mr. Lévesque was opposed to this charter, specifically section 27 on the enhancement of multicultural heritage. However, he feared for the linguistic rights of Quebeckers. When we look at the Ford ruling and all the rulings—let us be frank—the Quebec clause has been invalidated. That is what happened with the charter.

Potential access to school was expanded for minorities, but not only for minorities. When a parent did his or her primary school in English in Canada, it was the Canada clause that applied, not the Quebec clause enacted by the National Assembly.

Mr. Lévesque was a visionary. I ask my colleagues to applaud Mr. Lévesque for, without his visionary side, without this grasp he had of the Charter, I think that the history of Quebec would have been different.

Let us not digress, however: back to the quarantine bill. This is a bill which concerns human rights. Why? Because the quarantine officer, to be designed by regulation, will have a power of detention. We know that he will have to be not only a health professional but a physician. In a certain number of cases—I grant you that this will have to be with court authorization—he will be able to detain for several hours, or several days, persons who he has reason to believe are infected to some degree. It is here that the parliamentary committee has shown vigilance in adding the legally sanctioned notion of reasonable doubt.

As the hon. member for Marc-Aurèle-Fortin knows, it has been clearly established by the courts that one cannot cause bodily harm to a person. One cannot even compel a person to receive medical treatment. With regard to the Rodriguez case—whose connection to the Quarantine Act will be clear to everyone—and the issue of assisted suicide, it is important to know that the Supreme Court has said that section 7 on the right to life, liberty and security of the person does not imply the right to quality of life. The Supreme Court refused to declare invalid section 241 of the Criminal Code concerning persons who assist with a suicide.

Let us not forget the essential thing: all of this is to point out that Bill C-12 allows considerable powers of detention. The committee wanted to mark out those powers to some degree, and to ensure first of all that the trigger mechanism can be activated only on the ground of reasonable doubt and after an investigation.

A final note on travellers. To make it very clear to everyone, clause 28(1) of the bill creates very specific obligations for travellers. Indeed, under the Quarantine Act, when on Canadian soil, a traveller arriving from Paris, London, Berlin or anywhere else around the world, will be required to undergo a health assessment. This traveller will have to agree to the treatment identified by the quarantine officer. This is still subject to the qualifications I made earlier.

Let us look at another aspect of the bill, namely the whole issue of compensation. As we know, this issue took up a lot of the committee's time.

As I have less than a minute left, I shall conclude. In a nutshell, Bill C-12 is constitutionally valid, because it falls under the government's jurisdiction. It is a technical bill which, in some regards, should raise concerns about human rights.

We would have liked the BQ amendment calling for provincial jurisdictions to be respected and for no quarantine areas to be established without the prior consent of the province concerned. We would have liked a little more compensation. But, overall, this is a bill that deserves to be passed. The Bloc Québécois will support it.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Mr. Speaker, the member can correct me if I am wrong, but I thought I heard him say a moment ago that the government cannot compel a person to take a treatment. I would like to draw his attention to the provision in clause 26 which states that a traveller is required to:

--comply with treatment or any other measure ordered to prevent the introduction and spread of a communicable disease if, after a medical examination, the quarantine officer has reasonable grounds to believe that they have a communicable disease or are infested with vectors, or that they have recently been in close proximity to a person who has a communicable disease or is infested with vectors.

I wonder if the member is aware of that provision. I also wonder if he has a concern about the constitutionality of coercing individuals to have treatment for something they may or may not have.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, with the Quarantine Act, in order to avoid epidemics and the spread of communicable diseases, the government is aiming at requiring individuals with symptoms to undergo a certain examination. Our colleague knows that there are ways of challenging this and that judicial authorization is needed, as I mentioned. The committee amended various provisions in the legislation to refer to reasonable grounds on the part of the screening officer or environmental health officer.

What I was alluding to is the fact that the Supreme Court has determined that an individual cannot be compelled to undergo treatment. This does not have the same connotation or significance as what the member was talking about. The federal government says that it is responsible for quarantines related to public health because it does not want an individual to be a carrier spreading diseases listed in Schedule 1.

There was a case that was litigated a few years ago regarding parents who were Jehovah's Witnesses and refused to allow their child to have blood transfusions. In broad terms, the Supreme Court determined than an individual cannot be forced to undergo treatment. However, one can also not contribute to a person's death. In regard to medical treatment, what I was referring to in my speech was a Supreme Court decision about forcing an individual to undergo medical treatment.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Mr. Speaker, first I would like to congratulate the member for Hochelaga on his excellent speech. I would like to say that as the Bloc Québécois's health critic, he always works very hard. It was a pleasure for me to work with him when I was the NDP's health critic. A newly elected member is now assigned to this task, the member for Nanaimo—Cowichan. She is very interested and has a lot of experience in this regard. I think that the members will work very hard together.

I have two questions for the member regarding Bill C-12. First, I would like to know whether the member thinks that the government learned any lessons from the SARS crisis two years ago.

Second, is it certain Bill C-12 provides protection for workers who are quarantined without any compensation when such crises break out?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I always appreciate relevant questions from my colleague. I have fond memories of when she was on the committee, since she represents the very progressive wing of her party. I hear excellent things about the new NDP critic, who will take over from the leader of the NDP. She is responsible and respectable. We are eager to discover our new colleague on the Standing Committee on Health.

Our colleague is quite right. There is a very serious flaw in the bill. A worker could be quarantined for 24, 48 or 72 hours, without the assurance of receiving daily compensation for lost income. The government says, “Compensation is a possibility. The regulations will allow us to do this. However, we will proceed on a case-by-case basis. We refuse to make this a policy”. We think this is dangerous, because whenever decisions are made on a case-by-case basis, they could be discretionary. Consequently, we would have liked the bill to be more definite about this.

The whole issue of compensation is extremely important, but the amendments were unfortunately not accepted in committee.

[Keith Martin, Liberal, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I know we are talking about the Quarantine Act, but I want to draw to the attention of the member an issue that pales in comparison to anything that our species has ever been confronted with and that is the issue of AIDS. The AIDS virus is something that affects all of us in terms of the quarantine issue and the control of this illness.

The AIDS virus is something that is going to kill up to 220 million people around the world. In fact, as the clock ticks, in one country alone, South Africa, by this time tomorrow at 1:10, the equivalent of two jumbo jets of people would have crashed into the ground killing everybody. In one country alone 660 people are dying day in and day out, 365 days of the year.

I only bring this cri de coeur, a cry of the heart, to say that we must continue to work with our partners to ensure that the appropriate antiretrovirals are in place, the infrastructure is in place, and the prevention methods are in place to ensure that we can get control over this illness.

I know the member has done a lot of work in this area and I hope he might share with us some of the things we should be doing in addition to what we have already done in addressing this problem which is something that is not only affecting sub-Saharan Africa. I want to again draw to the attention of everyone that this disease is at a very critical moment in eastern Europe, Russia, China and India. It is on the geometric cusp of where Africa was 10 years ago. Unless governments in these countries are seized with this issue now, the number of people who are going to die will be absolutely catastrophic beyond all comprehension, affecting not only people but also the social and economic structures of their countries and indeed the international community.

Perhaps the member would like to share with us some of the new initiatives he thinks that the parties should be working with members of the NGO community here and abroad in trying to deal with this issue.

[The Deputy Speaker]

Thank you, and hopefully in the context of the bill that we are debating here today. The hon. member for Hochelaga.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, there is no question of heading off topic. You know that I have always had enormous respect for such questions, but the rule about relevancy deserves to be respected at all times.

Our colleague had worked with us on the health subcommittee and reviewed the first Canadian Strategy on HIV/AIDS, around 1996. Our colleague is quite right in saying that this is catastrophic, a pandemic. This is not an epidemic. An epidemic becomes a pandemic when more than one continent is affected. I do not believe that, in the context of quarantines, obviously, we would quarantine carriers of this virus.

In terms of international cooperation, for which we are still seeking at least 1% of the GDP, efforts must continue. Our colleague's observations are quite astute.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, as was previously pointed out, the NDP does support the bill but we do have some concerns.

I previously mentioned the importance of protecting workers like our customs officers and our health care workers, and ensuring that they have the resources they require to do their jobs.

In the submission to the standing committee, the Canadian Medical Association pointed out that during the SARS outbreak of 2003, physicians and other health care providers were not only partners in containing infection, but many became ill or died as well, and since health care workers expose themselves to infection as they respond to health emergencies, protocol should ensure that care and attention is paid to their safety through measures such as ensuring ready availability of proper masks.

The CMA went on to say that the act or regulations should address precautions required to protect quarantine officers and other health care workers from transmission of disease or the effects of becoming ill. For example, it should address compensation for quarantine officers who lose work because they become infected in the course of their study. It is absolutely essential that we ensure those kinds of protections are available for frontline workers and that they get the resources they need to do their jobs.

We also need to have one clear health authority and urge that the enabling legislation for the Public Health Agency be expedited. This has been pointed out by a number of organizations, including the Canadian Nurses Association and the Canadian Medical Association. They were not included in this legislation because the expediting legislation for them has not been brought forward.

The Canadian Medical Association also talked about the importance of supporting the need to enact this legislation for the Public Health Agency, and pointed out the need for a comprehensive Canadian emergency response strategy so that when we are faced with things like the SARS crisis, we have a coordinated response.

It is our hope that we never need this bill and that we will never have to use it, but if we do, it does give sweeping powers to the minister to detain people, to use privately owned facilities and to force people to accept medical assessment or treatment. Not enough assurances are in the legislation that the minister will act in a reasonable manner, that people's privacy rights will be respected or that workers affected by the quarantine will actually be protected.

Some of these areas of concern are going to be dealt with by regulations, and we have already indicated how important it is that the government act quickly on this, but other areas will not and we need to know that the government will soon bring forward legislation, especially for workers, that provides a quick response during a health emergency to such issues as employment insurance claims, medical leave and health and safety standards for frontline workers. We are asking our frontline workers to put their lives on the line in a crisis and they deserve every protection that the government can afford them.

Another omission that was identified during the committee stage was how the bill covers travellers and materials travelling in and out of Canada but has absolutely no provisions for interprovincial travel. Considering that it takes longer to fly from Vancouver to Halifax than it does to fly from Europe to Halifax, the chances of a communicable disease being transmitted from one end of the country to the other are great.

I would urge the House to consider the various concerns that members have raised around some of these issues and that we look forward to passing the bill quickly.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

On division.

(Motion agreed to, bill read the third time and passed)

The House proceeded to the consideration of Bill C-29, an act to amend the Patent Act, as reported (with amendments) from the committee.

Patent Act

[Mauril Bélanger, Liberal, for the Minister of Industry]

moved that the bill, as amended, be concurred in.

(Motion agreed to)

[Mauril Bélanger, Liberal, for the Minister of Industry]

moved that the bill be read the third time and passed.

[Jerry Pickard, Liberal, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, I am pleased to rise today in my place to begin the third reading of Bill C-29, which makes technical amendments to the Patent Act. Hon. members will recall that the changes provided in this bill are strictly technical and narrow in scope. We have made some further changes in the bill since it was introduced in the House last December.

The modifications to the bill are the result of representations received from intellectual property practitioners and that were presented to the committee which looked at some of the serious concerns.

Neither of these amendments materially changes the purpose or objective of Bill C-29 but both amendments are required for the bill to be effective in protecting intellectual property rights.

Before addressing the substance of these two amendments, let me remind this House of the issue at hand. Let me reiterate the points that were made during second reading of this bill.

We introduced Bill C-29 to respond to an unexpected court decision known as the Dutch case. The decision has raised uncertainties about the status of some patents. In order to apply for and maintain a patent application or patent, a set of fees must be paid. One of the factors affecting the fee payment is the size of the entity that is applying for the patent. If someone is a small entity, defined as an individual, a university or a business with 50 employees or less, the entity's fees will generally be half of those of large entities.

The definition of large and small entities sometimes becomes clouded when a business begins as a small entity but grows to a large entity, or a small entity is merged into a large entity, for example. This uncertainty of entity size sometimes leads to mistakes in determining the amount of fees that should be submitted.

The Commissioner of Patents administers the system and sets and collects the fees. In the past, if an entity had made an honest mistake in determining the level of the fee, the commissioner acted on the principle that the entity had acted in good faith. He gave the benefit of doubt and the entity was given an opportunity to top up his own fees.

That was the practice, but the Dutch case has terminated this practice and we now need to take corrective action, as the court found that the Commissioner of Patents had no legal authority to accept top up payments.

The case was appealed to the Federal Court of Appeal and on March 7, 2003, the court agreed with the lower court that late top up fees could no longer be taken.

Furthermore, the Federal Court of Appeal ruled that the determination as to whether an applicant would be considered a small or a large entity is to be fixed at the time of entry into the patent regime. This interpretation means that any applicant who had entered as a large entity and later became small, and paid commensurate fees, suddenly found themselves in the position of having underpaid the prescribed fees. These applicants and patent holders risk invalidation of their rights.

This creates a very difficult situation for holders of patents who may have not paid the right fee. An estimated 7,000 patents and applicants could be declared invalid if contested in the courts on the grounds that certain fees have not been paid at the proper entity level. Until this bill is passed, there is no legal way for these patent holders and applicants to rectify their situation. Bill C-29 seeks to end that confusion and remove the uncertainty.

As hon. members will recall from the second reading debate, the amendments contained in the bill provide a 12 month timeframe for patent holders and applicants who are negatively affected by the court decision to maintain their rights by making necessary top up payments.

This brings me to the two amendments to Bill C-29 that have been recommended by intellectual property practitioners in their representation to the committee.

The first amendment can best be described as an amendment to provide greater certainty. After the introduction of the bill on December 3, the Intellectual Property Institute of Canada advised the Canadian Intellectual Property Office that as currently worded it is not absolutely clear that clause 2 of Bill C-29 would apply to complex transitional provisions already found in the Patent Act.

We want to make it very clear that clause 2 will apply to the Patent Act's transitional provisions. Following the recommendation of the committee, the bill has been amended by adding at the end of the proposed new section 78.6 the following text:

(5) For greater certainty, this section also applies to applications for patents mentioned in sections 78.1 and 78.4.

The House will readily see that this amendment does not change the purpose of Bill C-29. In fact, it greatly clarifies the intent and ensures that all patents and patent applications caught by the Dutch decision are covered by this bill. Not proceeding with the amendment might leave some uncertainty in a bill that has been specifically introduced to clarify an uncertainty.

This brings me to the second amendment recommended at the committee stage. It also responds to the representations of intellectual property practitioners. They have told us and the committee that the requirement to provide information with respect to “the day on which the prescribed fee was paid” would create a significant compliance problem because patent agents may not being able to provide such information in every situation.

What would happen in the event that a patent agent could not accurately report the day on which the fee had been paid? What would happen, for example, if the fee had been paid many years ago and the relevant document is no longer available? According to the bill, as introduced last December, this would cause otherwise valid patents or patent applications to still be at risk.

The inability to provide information concerning the day on which the fee was paid should not invalidate a patent. Our objective is to create a system where innovation is protected, not one where innovators can be tripped up by red tape.

In the amended bill before us, the specific requirement of section 78.6(2) to provide information on the day in which the patent was paid has been removed. As in the case of the first amendment, this will not materially affect the purpose or objective of Bill C-29. It would make sure that the requirements can be met by practitioners.

These amendments are straightforward. They improve a bill that is designed to provide technical amendments to the Patent Act, amendments designed to clear up uncertainties. The bill had speedy passage at second reading and there is nothing in the minor amendments that would warrant a prolonged debate during third reading.

Although these technical amendments may seem like minor adjustments, they are in fact very important to the holder of patents potentially in default of the Dutch case. We should not delay this legislation. We should move quickly to clear up the uncertainties and thereby maintain Canada's reputation as a country that protects intellectual property rights.

Finally, let me remind the House that Bill C-29 also makes a technical amendment to the Jean Chrétien Pledge to Africa legislative provisions adopted during the last Parliament. It provides the other place with equal participation in assessing and recommending candidates to an expert advisory committee. This amendment clears up an oversight in the original legislation. No objections or concerns regarding these provisions were raised at the committee hearings.

I urge hon. members to pass the third reading of Bill C-29 as quickly as they can and allow it to proceed to the other place.

[Randy Kamp, Conservative, Dewdney—Alouette, BC]

Mr. Speaker, I appreciate the opportunity to speak to Bill C-29, an act to amend the Patent Act. This is a housekeeping bill, in our view, which addresses two separate patent related issues.

The first issue it addresses deals with the Jean Chrétien Pledge to Africa Act, which does help to facilitate the flow of drugs to help with HIV-AIDS, malaria and tuberculosis in least developed nations.

The act called for the creation of a committee of experts to advise the government on what pharmaceutical products should be eligible for export under the licensing regime set up by the act. The first part of Bill C-29 amends the act to allow the Senate, not just the House of Commons, to assess and recommend potential candidates for the committee of experts. We support this specific aspect of the bill, although we would ask for guidance from the Senate as to which committee or committees should actually deal with this issue.

The second part of the bill deals with patent fees and entity size. Fees are required at all stages of the patent's life, application, review and maintenance. Canada and the United States have separate fee structures depending on whether a business applying for a patent is a small entity or a large entity. A separation based on size is quite common.

Until recently, a company that filed for a patent under the small business fee structure and then became a large business, or vice versa, was granted flexibility in its patent fees. The company could pay a top-up or could reduce its fees due if the enterprise size changed. The top-up scheme has caused considerable administrative trouble for patent agents and it is my understanding that they would like this matter remedied as quickly as possible.

A court case has clarified that there should never have been such a top-up scheme. The courts ruled that the entity's status is determined when a patent regime is first engaged. Thus, if the company files as a small business at day one, it is considered a small business for the life of the 20 year patent. This set of amendments is required to prevent possible lawsuits for an estimated 7,000 patent holders and patent applicants on the grounds that their fees have not fully been paid and thus their patents could be declared invalid. This was the Dutch Industries case, in fact.

We support these amendments as well in the sense that they will certainly reduce a lot of the legislation or the litigiousness that could result from this. We think that the size of the company when it gets a patent should determine its size for the life of the patent.

In conclusion, we also support the amendments to the interpretation of schedules because we would like Canada to have a clear intellectual property framework.

[Paul Steckle, Liberal, Huron—Bruce, ON]

Mr. Speaker, I am pleased to support passage at third reading of these technical amendments to the Patent Act. The matter before us is very simple and straightforward. A court decision has determined that a well known practice followed by the Commissioner of Patents was beyond his authority and jurisdiction. As a result, many of the patent applicants and holders who had taken advantage over the years of the commissioner's practice of flexibility are now seeing the protection of their patent rights being jeopardized.

The bill provides a technical solution. It provides the patent applicants and holders with a 12 month period in which to make top-up payments.

Fees are applied to patents, trademarks and industrial designs. On January 1, 2004, a new fee structure came into effect. On filing an application for a patent, a small entity is required to pay $200 and a large entity $400. On requesting an examination, a small entity pays $400 and a large entity $800.

Maintenance fees on applications filed on or after October 1, 1989, vary according to the amount of time that has passed. For two to four years, for example, the maintenance fee is $50 for a small entity and $100 for a large entity. At the other end of the continuum, a small entity pays $225 to maintain a patent that is 15 to 19 years old and a large entity pays $450.

One can readily understand why an entity would prefer to pay at the lower amount. This is especially the case with individuals and small businesses. Often an inventor must keep a close eye on the expenses. The invention may one day land the inventor a windfall, but until that happy day comes, the inventor may have to scrape pennies to keep the operation going from one year to the next. But as the Dutch Industries case has shown, it is very important that an entity submit the correct fees; otherwise the patent may lapse.

I think it is very important also to bear in mind that the Commissioner of Patents and the patent applicants and patent holders have acted in good faith in these matters. The applicants and holders endeavoured to pay the right fees and sought corrective action by paying top-up fees if they found they had been mistaken in the past, and the Commissioner of Patents acted in good faith by providing the opportunity to take corrective action by paying top-up fees.

It took a court case to determine that this corrective action was beyond his jurisdiction and authority. Notwithstanding the fact that top-up maintenance fees have been accepted by the Commissioner of Patents, the courts have held that it was an improper exercise of the commissioner's discretion and not within his jurisdiction.

On September 24, 2001, the Canadian Intellectual Property Office issued an official notice stating that, as a result of the Dutch Industries decision, the office will not accept any corrective payments submitted after a due date unless the appropriate actions are taken as required by legislation or, in other words, a reinstatement or late fee in the correct amount is submitted with the prescribed period.

While the impact of the court's decision is understood for going forward, the bill allows for redress for those unexpectedly affected by the decision. But those entities that filed the wrong amount before the prescribed period are now in a state of limbo. Unless we take action with this technical amendment, their patents may lapse.

We should not be penalizing the inventors and innovators who mean so much to our economy. We should give them an opportunity to take corrective action by allowing them, for a period of time, to take the necessary action which results from the court decision.

Many inventors and innovators wait anxiously for our action in this matter. By some estimates, there are some 7,000 patents that may have been maintained with incorrect fees. The Dutch Industries case has put the validity of these patents into question, and until we make this technical amendment, the threat of intellectual property litigation hangs over them.

This technical amendment will provide the patent applicants and holders with 12 months in which they can make top-up payments.

I would point out to the House that during the committee phase, the patent agents, through their professional association, the Intellectual Property Institute of Canada, proposed two amendments to the bill. Neither of these amendments changes the fundamental purpose of the bill.

The first amendment of course provides for greater certainty. The bill is intended to apply to all past top-up payments and make them legal, but when one reads the wording of sections 78.1 and 78.4 of the Patent Act, it is not clear that this would be the case. These two sections of course provide that patent applications filed at certain specific dates are to be dealt with and disposed of in accordance with the provisions of the Patent Act as they read on these dates.

The provisions of this bill will not have been part of the Patent Act on those past specific dates. There is a concern that the technical changes before us would not apply to past filings. That is clearly not the intent of the bill, so a new proposed subsection 78.6(5) has been added to clause 2, stipulating that this section also applies for applications for patents mentioned in sections 78.1 and 78.4.

The second amendment deals with a compliance difficulty. In clause 2, certain information is required when applying to make top-up payments. One requirement is the day on which the prescribed fee was paid. Some of the payments may have been made 10 or 15 years ago. While the day of payment for examination fees or final fees is kept on record, the exact day on which a maintenance fee was paid may not be known. The amended bill now before us has deleted the requirement to provide the day on which the prescribed fee was paid.

These amendments improve a bill that is designed to provide tactical amendments to the Patent Act. The bill passed quickly through second reading and committee stage and I see no reason why it should be delayed here at third reading. I hope hon. members will join me in working for a swift passage of the bill.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, let me say to my colleague from Huron—Bruce that I have listened to the debate and I am trying to figure out why it took so long for a pretty simple straightforward amendment to get to the House, especially in light of the administration having had a majority government in the last Parliament. If I add up the time correctly, it has been over four years since it was identified by our courts that this practice was not proper.

I am just wondering why it took the government so long to actually deal with this, in light of the instability created for all those people who had those patents, some 7,000, and who have been sitting and waiting to figure out whether in fact the patents are valid.

[Paul Steckle, Liberal, Huron—Bruce, ON]

Mr. Speaker, not having been a member of that committee, it is my understanding and my full belief that there was always a willingness to resolve this issue as quickly as possibly, but there was delay, I believe, because of the fact the court had not rendered its decision in the case. That has now occurred. The decision has of course now allowed us to move forward. Taking the decision, we move today that we take the corrective measures which have been recommended. We trust that all opposition members will concur.