Canadians are recognized as strong innovators and entrepreneurs, and yet we are also seen as laggards when it comes to protecting intellectual property (IP). This post expresses optimism that we can close that gap by identifying our strengths and embracing the potential for future growth through teamwork.
I see three key factors to successfully protect innovation in Canada: 1) a robust IP profession; 2) government support; and 3) industry participation.
Robust IP Profession
The trademark and patent agent professions are strong, robust, and well-positioned to support Canadian entrepreneurs with protecting their innovations at home and around the world. Our nascent public regulator, CPATA-CBAMAC, complements the seasoned professional association, IPIC. CPATA-CBAMAC poises the professions for first-in-class public interest regulation overseeing agent training and continuing professional competency. IPIC's rich history with the Canadian IP profession provides advocacy and professional development for IP professionals. Working together, CPATA-CBAMAC and IPIC can propel the professions greater heights and public confidence in Canada's IP ecosystem. The two organizations have already shown remarkable cooperation in the fields of liability insurance and continuing education, and with the right mindset there is no limit to what the two organizations can achieve together in fostering a pool of globally respected IP professionals.
Government Support
Canadian governments are aware of the need to support IP protection for Canadian companies. For example, in Ontario, IPON offers IP support for qualified Ontario Innovators. Quebec offers a so-called "Patent Box" which allows for income tax deductions for R&D activities and IP assets within the province of Quebec. Federally, Innovation, Science and Economic Development Canada (ISED) offers IP Assist, and the Elevate IP program is supposed to come on-line soon. There is also the independent Innovation Asset Collective or IAC which is supported by ISED.
Unfortunately, these government programs are disjointed and administered across several different government agencies. In addition to these five programs, which directly support IP in Canada, the most ubiquitous Federal program is administered separately from ISED by the Canada Revenue Agency in the form of the Scientific Research and Experimental Development (SRED). Interestingly, the SRED program has criteria that align with patentability, but it essentially serves as an unconditional taxpayer subsidy for Canadian innovation, without the requirement that the innovation to be protected. This encourages Canadian companies to simply take the cash without considering the long-term goal of protecting the very innovations that Canadian taxpayers are subsidizing and potentially dropping the innovation into the public domain. Canada would benefit enormously from a consolidation of these support programs. A page can be taken from countries like Germany, where the massive Fraunhofer Institute focuses on applied research and supports IP filings for German companies.
The various levels of government support in Canada are a great start and show how Canada is on the right track, and I hope we Canadians can look at these disjointed programs and merge them into a coherent national voice for promoting and protecting Canadian innovation.
Industry Participation
While the profession and the government offer support and assistance, we also need the full engagement of Canadian industry. The most important engine for Canadian innovation is Canadian industry itself, and a successful national IP strategy needs engaged participation from Canadian innovators.
It is well known that Canadians have an amazing education system and can produce remarkable innovations ranging from medical advances such as insulin to revolutionizing computing from the Blackberry to artificial intelligence. Internationally recognized Canadian brands such as Lululemon and Canada Goose show our entrepreneurial acumen. However, having spent decades in this profession and extensively worked with US companies, I have noticed a massive cultural gap between Canadian and American innovators who are much more comfortable seeking patent protection. The modesty of Canadian innovators, particularly when it comes to safeguarding their inventions, carries a distinctive, quintessentially "Canadian" characteristic. I have watched many Canadian companies leave much on the table, which is especially frustrating when those same companies have been supported by the SRED program.
Every Canadian company needs a trademark strategy, and there are many talented trademark agents ready to assist. While not every Canadian company needs patents, many that should pursue them, do not, and thoughtful patent agents know how to navigate these waters. The point is to develop an IP strategy and consider all possibilities, whether patents, trademarks, copyrights, or trade secrecy programs to create meaningful barriers to entry, facilitate business growth, and thereby contribute to the growth of the company and the Canadian economy as a whole. A coherent, thoughtful and periodically updated IP strategy with evidence-based targets can support overall corporate growth. In this way, IP programs can be seen simply as managed assets, rather than seen as a frustrating sunk-cost. To get there, we need a cultural shift within Canada to embrace IP, and we need IP professions that speak the language of business so we can create IP strategies with demonstrable returns on investment.
Conclusion
The message in this blog post is not new and has been repeated many times over the years. I am an optimist and believe we are making progress, and I continue to believe we need to keep repeating the message. Between the excellent profession of IP agents, focused government policy to foster and protect innovation, and motivated Canadian entrepreneurs, I know we can continue to make a difference and solidify Canadian IP protection on the world stage.
June 19, 2023
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