Photo Credit: Jon Tyson on Unsplash

Ryan Erdman is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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In a truly monumental achievement in scientific innovation, there are now authorized COVID-19 vaccines around the globe. However, present inequities in global distribution plague the achievement and ultimate success of these vaccines in ending the pandemic. show that 87% of the over 1 billon doses administered worldwide have been in high-income countries, compared to only 0.2%��of doses administered in low-income countries. As world case numbers continue to rise, the presence and likelihood of variant strains only prolong the immediate harms and long-term impacts. If current trends persist, COVID-19 will continue to devastate countries with less developed and more permeable borders long after developed countries reach majority levels of immunization. At the current pace, it is some low-income countries will not see significant percentages of the population vaccinated until 2023.

The trends in inequitable global access to new medicines are not novel and have long been tied to the intellectual property (IP) rights granted to drug manufacturers in return for taking on the “risk” of research and development (R&D). In general, by awarding a period of limited exclusive rights during which the developer can set non-competitive prices, IP protections inherently and negatively impact affordability. At the beginning of the pandemic, costs and public sector investment affected the ability of high-and upper-middle-income countries to around 6 billion doses through advanced purchase agreements. In October, South Africa and India submitted a to the World Trade Organization (WTO) calling to temporarily waive the Trade-Related Aspects of the Intellectual Property Rights (TRIPS) Agreement provisions relevant to COVID-19 related technology, citing historical and present barriers in affordable and timely access to new medicines created by IP rights. Specifically, they call for a waiver of sections outlining the rights and obligations in the areas of copyright, industrial designs, patents, and the protection of trade secrets relating to “the preventing and treatment of COVID-19.”

The breadth of the original proposal is important in light of the Biden Administration’s recent supporting a waiver of IP rights. The announcement, however, does not directly support the waiver initially proposed 7 months ago. The scope of the initial waiver proposal was purposefully broad, looking to eliminate barriers created by IP protections related to accessibility of not just vaccines, but also other necessary technology in the areas of diagnostics, P.P.E., and other therapeutic drugs. The scope and duration of a waiver comprise many key issues that will need to be agreed to and countries have shown a to come to the negotiating table in light of the US announcement. Canada has that it will not block a waiver, and that the government is committed to work towards a “consensus-based” solution.

But where time is at a premium, the complexity and length of negotiations is an obvious cause of concern. Given the likelihood of COVID-19 becoming , including the persistent threat of variants, any waiver may significantly affect future innovation in COVID-19 “booster shots” and other vaccine technology. This is part of why Big Pharma has met the Biden Administration’s announcement with continuous and skepticism for the efficacy of any waiver in meeting the objective of timely increases in global production. The most prominent of these criticisms doubts that a waiver will effectively address the true bottlenecks, which is to be the scarcity of raw materials and ingredients and the lack of technical know-how.

This is particularly important in determining the scope of the waiver, as a vaccine “patent waiver”, as the media consistently calls it, is simply underinclusive of the knowledge transfer necessary. While a vaccine patent waiver could help alleviate obstacles around technology fragmentation, where different parties own multiple patents related to one vaccine, scaling up production in developing countries also requires the transfer of technical processes. This would involve numerous types of IP and requires technical expertise to build and implement. Some this is why, even though Moderna has long not to enforce certain COVID-19 patent rights during the pandemic, there has been “no flourishing of factories pumping out “generic” messenger-RNA vaccines.” New manufacturers would also need to generate a novel and comprehensive “”, as they cannot rely on the safety and efficacy clinical trial data of originators like with small molecule drugs. The original waiver addressed both copyright and trade secrets, but there are clear that any waiver is certainly going to be narrower than that originally proposed. Any “consensus-based solution”, if at all, will take months and not include the time for new producers to build production capacity and meet regulatory hurdles. WTO Director-General Ngozi Okonjo-Iweala recently expressed “hope” that a waiver could be agreed upon by .

Nonetheless, while accepting that a waiver may not be a “silver bullet” solution, the announcement has certainly reflected optimism for a critical shift in the status-quo, with the head of the WHO calling it a “monumental moment in the fight against COVID-19.” We could look back on this as the moment where high-income nations finally move-away from strong notions of “vaccine nationalism.” Timely access requires a unified effort and immediate, continued support from developed nations for global initiatives like the UN-backed , which plans to deliver billions of vaccines to low-income countries. Members on both sides of the waiver debate advocated for vaccine-producing nations increasing production and reducing restrictions on the export of vaccines (and materials). Interestingly, some that the threat of a waiver could also be a tactic to push companies into greater licensing strategies and persuade them to exhaust production capacity and sell extra supplies to poor countries. The perceived threat of compulsory licensing has pushed companies to make broader global pledges in the .

Where a pandemic is truly a “” every second matters, yet there are many reasons to believe that we will not feel the effects of any negotiations for a long time. Waiver discussions are sure to intensify ahead of the WTO’s next formal meeting in early June.

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Per the Federal Court’s decision in ,��the Promise Doctrine holds that if a patent application promised a particular utility, it was necessary to prove that function in order to acquire the patent. Furthermore, in the absence of any promised utility, proving even a miniscule amount of utility is enough to be found patentable. Since patents are deemed invalid if there is an insufficiency of utility under s. 2 of the patent act's definition of 'invention' and per paragraph 46 of , the effect of the Promise Doctrine was to substantially raise the bar for applicants that alleged benefits to their inventions by denying patent protections for those who failed to meet the stated promises.

In court, the series of decisions and appeals in the AstraZeneca Canada Inc v Apotex Inc suit focused on whether the Promise Doctrine should be used to find AstraZeneca’s ‘653 patent – pertaining to optically pure salts of the (-) enantiomer of omeprazole, esomeprazole – invalid because the patent promised more utility than it could deliver.

At the , Justice Rennie found two alleged utilities: using esomeprazole as a proton-pump inhibitor (effectively reducing stomach acidity) and having superior pharmokinetic and metabolic characteristics so that its therapeutic profile in clients would be more stable. By applying the Promise Doctrine, the ‘653 patent was found invalid for not meeting the utility requirement of of the Patent Act for the alleged superior therapeutic profile, despite the utility of esomeprazole being proven as a proton pump inhibitor. At the , the judgment of the lower court and the applicability of the Promise Doctrine were affirmed.

However, the decision from the SCC demonstrated that the Promise Doctrine and the analyses of the lower courts run contrary to the form of the Patent Act by conflating the requirements set out in s. 2 and s. 27.3. demands there be some useful aspect of a creation for it to be regarded as an invention at law. If some usefulness is present, the invention must be disclosed as specified in of the Act in its patent application. In , Dickson J clarified that the usefulness standard set out in s. 2 of the Patent Act acts as a “condition precedent to an invention” whereas s. 27.3 merely sets out disclosure requirements that are to be interpreted independently of s. 2. So, the Promise Doctrine goes against the independent interpretation of these two sections of the Act by demanding that the utility requirement set out in s. 2 be fulfilled or predicted at the time of filing, or otherwise find the invention pre-condition for patentability vitiated.

The SCC noted that the Promise Doctrine is also at odds with the Act where multiple utility promises are made. Under the Doctrine, all utility promises would have to be satisfied for the usefulness threshold in s. 2 to be met. However, the opinion of the SCC is that any single use “that is demonstrated or soundly predicted by the filing date” would be adequate to satisfy the demands of s. 2. Requiring all utility promises to be met, would be “unfair” and can lead to “otherwise useful invention[s] to be deprived of patent protection” simply because some promises were not demonstrated or predicted.

Given the highly experimental and sometimes tangential nature of innovation, a lack of protection for inventions that have managed to achieve some, but not all, of the promised utilities highlights the the Promise Doctrine appears to have on research and development. Citing the work of , and , , the SCC found that “inventions are like a many-faceted prism: multiple claims… covering all facets are allowed in the same patent if a single general inventive concept links them.”

Considering a multiplicity of promises is especially important in pharmaceutical development and organic syntheses where broad, overarching concepts like an improved therapeutic profile may be anticipated, but not proven in full. The possibility of off-target therapeutic effects or side-effects can make an exacting prediction of utility difficult and, under the Promise Doctrine, may bar legal protection. After all, as the SCC established in ., “the patent regime has a dual purpose – to incentivise [creation] and to encourage inventors to publicly disclose [their knowledge] for society’s benefit.” If the bar for acquiring a patent is set too high, some inventors may get cold feet.

Dominic Cerilli is the IPilogue content editor and social media coordinator as well as a JD candidate at Osgoode Hall Law School.

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What is CRISPR?

Some scientists believe the design and development of new biomolecules is as much an art as it is science. The ��discussed, and used, by Dr. Pearlman capitalizes on an adaptive immunity system found naturally in bacteria and archaea that uses clustered, regularly interspaced short palindromic repeat (CRISPER) DNA segments to fend off invading viruses. In naturally adapting to a virus invading the cell, CRISPR associated proteins (Cas proteins) will create a spacer unit of genetic code that is unique to the invading virus and incorporate this spacer into the CRISPR region of the cell’s genome. This unique spacer unit will then be transcribed (that is, converted from double stranded DNA to RNA), associate with Cas proteins to form a functional complex, and then target and inactivate the very same type of virus that led to the creation of the spacer unit.

In the laboratory, genome editing uses the functional complex found in this adaptive immunity mechanism to insert or remove genetic code from the genome of a cell. By attaching a synthetic, guiding portion of RNA (sgRNA) to Cas proteins they can be directed to a portion of the genome, through complimentary base pairing with the sgRNA, where Cas will recognize a portion of the genome and cut it to either insert a new region or to remove a portion and disrupt the expression of a gene. By cutting out sections of DNA a gene can be disrupted and lose its functional expression in the cell. In other words, it will no longer be able to produce the molecular products responsible for its former physical trait. By inserting new regions of DNA, the genome can be expanded to confer resistance to invading pathogens, such as viruses, or to express new protein products that can add or enhance the cell’s function. For example, a new portion of DNA may be inserted that codes for a digestive protein not normally found in the cell and, consequently, grant a new molecular digestive mechanism.

What does Genome Editing have to do with Law?

Dr. Pearlman noted that there has been an explosion of scientific literature covering the CRISPR system of genome editing since 2010 and it appears that the momentum will only grow in the coming years. The ability to edit genomes can allow for the expression of new protein products that can be of great commercial value as well as pave the way for new medical treatments that circumvent traditional pharmaceuticals. Additionally, Dr. Pearlman noted that the CRISPR system can be used to produce heritable traits – that is, changes that can be transferred from a parent to their offspring. With this sort of molecular modification becoming more pragmatic, it becomes paramount to have a thorough understanding of the biochemical expression pathways that govern genomic expression to keep an eye on the ethical implications of modification. If human genome editing were to become available, should those with advantageous genomic modifications be treated differently by public health systems? To whom should these technologies be made available, if ever? These questions are beyond the scope of current genomic technology but, with the growing pace of CRISPR methodologies, designs may soon start to reach more readily into the macroscopic domain.

What Makes Scientific Designs Different?

With the cost of biochemical research and development increasing and a billion-dollar entry fee for the drug and biomolecular development market it follows that when an industrially relevant molecule is finally created the developer should be able to recuperate their investment and benefit from their work. Normally, the boundaries of property rights require contextual understanding: what is the nature of comparable products, if the new product’s design is generic or obvious, and if the new product can have a place in its intended market. The differentiating criteria of the sciences become pronounced when considering the esoteric nature of the discipline. How can one reasonably expect a thorough consideration of the distinguishing criteria for obscure scientific concepts, like base pair fidelity, when the requisite knowledge is held only by a few people, like Dr. Pearlman, who have committed years, if not decades, to the study? The nuanced nature of genetics can make innovations in genome editing or CRISPR technology appear to be near imitation; however, the modification of a single nucleotide in the genetic code can have a profound impact on the success and possible application of a biotechnology.

Synthesis, Structure, and Industry

What amount of scientific knowledge is sufficient in legal practice? that a special breed of IP lawyer will arise to confront the high demands of contemporary science and technology patents. Considering the high financial stakes and the significant likelihood that a new molecule or molecular technique will fail the requisite safety tests at any of a multitude of stages, a lot of designs are left in the laboratory. A re-engineering of the approach or scrapping the project in its entirety may follow, meaning product patents should not be initiated until after the molecule has been proven safe for its regular use instead of when it is first designed or synthesized in the lab. Additionally, research and development can indirectly prioritize self-benefit over scientific collaboration since scientists rely on design details to learn about their ever-developing field and most details are kept secret until after a patent has been granted.

This is where innovation becomes conservative and structure becomes especially important. Does a single elemental substitution in the genetic code constitute a new product if the application remains the same? What about changing a single gene to modify a physical characteristic that relies on multiple genes? While certain business practices, such as non-competition deals, are commonly found outside of the sciences, unique can arise from small chemical modifications which effectively extend a patent beyond its expiry date through the issuing of a new patent for a highly similar molecule. Furthermore, patents may be sought for generic parts of biotechnology procedures that are nonessential to its action, prohibiting competitors from including strategies in their approach and significantly , or even demolishing, a competing synthesis. Lastly, meeting the testing and safety demands of different communities poses an for introduction into a global market due to different national regulatory standards.

So, What Makes It My Molecule?

The same fundamental concepts that apply to patents outside of genome engineering also apply to those inside the discipline but with a stringent demand to understand the nuances of molecular design. An integration of mechanistic knowledge may prove to be key when evaluating possible distinguishing criteria among patents filed for similar compounds but it is ultimately up to practicing lawyers to integrate sufficient scientific knowledge to accurately capture the scope of their client’s designs.

Dominic Cerilli is the Content Editor for the IPilogue and a JD Candidate at Osgoode Hall Law School.

[1] Dr. Pearlman's talk was organized by The 91��ɫ Collegium for Practical Ethics and The 91��ɫ Centre for Public Policy and Law under the leadership of Ian Stedman.�� Support for the event was provided by IP Osgoode, McLaughlin College, 91��ɫ - Faculty of Health, 91��ɫ - Faculty of Science, and 91��ɫ's Office of the VPRI.

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What is the "Partnership on AI", and who are the Partners?

The “Partnership on AI” is a not-for-profit��platform to support best practices in the development of Artificial Intelligence.��, , , and are the founding partners. These companies are industry leaders in the development of artificial intelligence, drones, and enterprise technologies.

������’s Watson AI in recent years for its ability to research and compile relevant information at super-human speeds. Watson has the potential to fundamentally change the nature of industries reliant on intelligent research. DeepMind, Google’s AI development office, when its “learning” AI was able to beat world champions at the ancient logic game��Go. The scale of processing needed to calculate moves in Go is astronomically greater than that in chess, marking a distinct shift in the capabilities of computing since IBM's .

Why should we be concerned about AI?

These computers are examples of how computing is already capable of information processing exceeding that of humans, in some areas. Sam Harris' TED Talk argued “if intelligence is just a matter of information processing, and we continue to improve our machines, we will produce some form of superintelligence.” At the same time, he argued, we have so little understanding of how to constrain such an intelligence and “we have no idea how long it will take us” to determine that.

We should be afraid of this paradigm. Artificial intelligence, if incorrectly implemented, .��The extreme example Harris offered was that “a few trillionaires”, benefitting from the exponentially improved productivity of AI, “could grace the covers of our business magazines while the rest of the world would be free to starve”, as the result of AI eroding jobs and networks of economic exchange. The fear in this example is not that artificial intelligence would become malevolent—as has proposed it may—but, instead, that it would be so much more intelligent and capable than humans, and, by relative measure, ��intellectually, we would be to it what ants are to us.

What does the Partnership propose to do about this?

The and of the Partnership on AI respond to some of Harris’ concerns. The organization states its mission is to ensure the maintenance of, “ethics, fairness, inclusivity, transparency and interoperability, and privacy” in the development of artificial intelligence.

The organization intends to bring together experts from a broad range of fields to respond to the implications of AI in relation to economics, social science, finance, public policy, and law.

The organization’s tenets include: “to ensure that AI technologies benefit and empower as many people as possible”; “maximize the benefits and address the potential challenges of AI technologies”; and, “working to ensure that AI research and engineering communities remain socially responsible, sensitive, and engaged directly with the potential influences of AI technologies on wider society”—these suggest that this organization understands and empathizes with the concerns of Harris and others, related to AI.

What does this mean?

It remains to be seen if this organization and the oversights it vows to provide will prove sufficient to mitigate the potential threats and issues raised by Harris. Concerns are already being raised related to the and Elon Musk (of , , ) from the agreement.

��������’s Siri personal assistant and Tesla Motors’ cars are two of the highest-profile artificial intelligence applications on the market. Both companies stand poised to play a major role in the development of AI. It remains possible that these companies could join the “Partnership”, however, both Apple and Musk are known for their history of independence in the tech market. If these developers choose to remain independent, this could seriously undermine the authority of the "Partnership" and affect the ability for the AI development 'industry' to self-regulate.

It is also worthwhile to consider that the "Partnership" is rooted only in American businesses, which presents problems insofar that it does not adequately account for the emergence of new AI developers��in countries outside of the United States - China, or India, for example. As well, in an extreme case, the centralization of such AI development singularly in the United States could contribute to Cold War-esque tensions, which Harris warned his audience during his talk.

The Manhattan Project for AI?

Harris' Manhattan Project analogy is significant. The Manhattan Project brought together many of the world's greatest scientists and mathematicians to construct the atomic bomb, all with the purpose of ensuring that power did not fall in to the wrong hands - Nazi Germany - during the Second World War. For its intents and purposes, the project succeeded. The bomb was built and it was used to end the war. However, as history proved,��despite the positive intentions of the project, it ultimately contributed to further evils as the impetus for the beginning of the Cold War. Albert Einstein, who , later regretted the creation of the device.

If AI were to go the way of the atomic bomb, that is, result in disastrous consequences despite our best efforts to regulate it, this author believes that fact should be cause for concern. While the functionality of AI remains in question as developers continue to seek greater and greater cognition from their machines, this may be, as Harris argued, a critical point in our history.

Christopher McGoey is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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In a hundred years, the vaulting pole has changed from a piece of hardwood to an intricately-built piece of fiberglass and carbon fiber, assembled through patented methods. Unsurprisingly, the pole vault record is the most frequently broken world mark in men’s track and field history. As of 2014, the International Association of Athletics Federations (IAAF) has reportedly ratified , set by 33 different vaulters. The is Renaud Lavillenie of France, who cleared a height of in Donetsk, Ukraine in 2014. To put this into perspective, the world record in 1904 was 4.02 metres. The best pole captures all of the energy transferred to it by the vaulter and efficiently transfers it��back to the vaulter as they are launched into the air. Minimal increases in the world record in the last decade have hinted that the combination of materials technology and athletic performance may be reaching its peak. The heights achieved by modern pole vaulters undoubtedly rely on the pole. However, with all vaulters equipped with similar fiberglass poles, the sport becomes a truer contest of technique.

The Technology

Originally, vaulting poles were made out of , typically solid ash or hickory. Starting around the beginning of the 20th century, poles began to dominate the sport. These poles were significantly lighter their hardwood counterparts, allowing for a faster run up. More importantly, they could bend, whereas hardwood poles could not.

The next innovation in poles came along with the introduction of aluminum as a key material. The Carpenter patent () discloses a hollow vaulting pole made from an aluminum alloy. The invention provides for a significant reduction in weight over vaulting poles formed of wood which typically require a large diameter to prevent splintering. The invention's one-piece design is swaged into successively smaller cylindrical sections throughout its length to create a pole that gradually reduces in diameter up to where the vaulter grips the pole. Furthermore, the bottom end of the pole is closed with a convex-shaped endcap that acts as a pivot when the pole contacts the ground. The rounded endcap replaced a metal spike at was normally attached to the bottom of the wooden vaulting poles.

The Lindler patent () represents an improvement in the manufacture of vaulting poles made using the next key material: fiberglass. It discloses a glass-fiber reinforced vaulting pole that possesses 10% greater hoop strength than previous glass-fiber vaulting poles. To manufacture the improved vaulting pole, knitted glass-fiber tape pre-impregnated with a thermosetting resin is wrapped around a mandrel. Next, pre-impregnated longitudinal glass-fiber filaments are laid about the tape substantially parallel to the axis of the mandrel. Four layers of cellophane tape, two layers clockwise and two counter-clockwise, are then helically wound about the longitudinal glass-fiber filaments. The assembly is hung in an oven heated to a range of temperatures for specific durations to cure the epoxy resins. After the cooling, the mandrel and cellophane are removed. Next, a helical winding of glass-fibers, pre-impregnated with a thermosetting resin, is applied to the surface of the pole. After curing and hardening the winding to the pole, the pole is cut to its desired length and is fitted with a pivot endcap in one end and a plug in the other.

The Jenks patent () presents a fiberglass vaulting pole manufactured in a way to improve hoop strength. The pole is built on a mandrel by first helically winding epoxy impregnated fiber glass tape into a continuous succession of butt-jointed turns with the tape's fibers��extending lengthwise of the tape. Next, a rectangular shaped piece of epoxy resin impregnated fiberglass broadcloth is wrapped multiple times over the tape. A fiberglass tape, identical the first tape, is then helically wound over the cloth in the direction opposite to the first tape. Since the taped turns are crossed with one another, the butt joints of each tape are reinforced by the tape of the other layer. Next, another cloth wrapping is added but with an isosceles trapezoidal shape. Having the trapezoidal wrapping as the outer layer is advantageous because changes to the shape of the trapezoid and the number of times it is wrapped around the mandrel can be used to alter the pole's design. Finally, the mandrel comprising the four wrappings goes into an elongated curing chamber which applies heat to cure the resin and external pressure to compact the fiberglass and epoxy into a unitary rigid structure. The two tape layers give the pole great hoop strength since the fibers on the tape extend primarily around the pole, is in contrast to woven tape where 50% of the fibers extend lengthwise and do not contribute to hoop strength. With the broadcloth being located between the tape layers, it acts as a column load barring member since its lengthwise fibers are firmly fixed in position to resist splitting.

The Johnston patent () improves upon its predecessors by describing a vaulting pole endcap designed to provide additional forward penetration of the pole into the plant box. This design allows the vaulter to hold the pole higher and hang for a greater period of time below the rotating pole.

The Watry et al. patent () presents a vaulting pole manufactured with five filament layers in which at least one is a carbon weave layer. The preferred location of the carbon weave is in the second layer of the body wrap due to its strength in all directions. The weight of the vaulting pole can be further reduced by replacing additional fiberglass layers with carbon fiber layers. Most world class vaulters have continued to use 100% fiberglass poles as the reduction in weight provided by carbon fiber does not overcomes the slight decreases in durability.

The Bentley patent () introduced a vaulting pole with an angular deviation away from the pole’s lengthwise dimension for increasing the vaulting pole plant angle and providing an ergonomic hand grip. The greater the pole angle a vaulter can achieve when planting the pole in the plant box, the greater the vaulter’s ability to move the pole toward the landing pit. This invention has not yet gained widespread use by vaulters.

Canada in Rio

Canada is a medal threat in both the men’s and women’s pole vault in Rio. Shawnacy Barber of Toronto enters as the reigning men’s world champion after his win at the 2015 World Championships in Beijing. Earlier this year, Barber joined the , becoming its 19th member and, at age 21, the youngest ever to clear the height. On April 9, 2016, Alysha Newman of Delaware, Ontario set the new Canadian women’s pole vault record by clearing a height of . Newman, at age 22, enters Rio as the 4th ranked women’s vaulter in the world. The men’s pole vaulting final starts at 8:35 pm on Monday, August 15, while the women’s pole vaulting final starts at 8:30 pm on Friday, August 19. Be sure to tune in to cheer on our Canadian vaulters all the while contemplating the remarkable evolution in pole vaulting patents.

Justin Philpott is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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In order to��examine the role of��copyright in this emerging situation, , assistant professor��of political science��at Brock University, chaired a panel focused on (TD34). This panel was comprised of renowned and emerging scholars working on copyright and related issues.

, professor of political science and international affairs at the Elliot School of International Affairs (The George Washington University), began the panel by discussing what she describes as "the cat and mouse game" of global copyright politics. Professor Sell has had a distinguished career examining the . She describes the contemporary situation as the interplay between "cats" (intellectual property (IP) rights holders seeking to ration IP) and "mice" (stakeholders advocating for greater access to IP-related goods and services). In institutional and legal contexts, the cats and mice each work to assert their interests, concerns, and positions.

For example, the negotiations are described as an instance of "forum shifting" where IP rights holders (cats)��and their supportive governments seek to expand and entrench beneficial IP law internationally without public consultation or participation via trade negotiations operating outside of the multilateral (WTO) framework. In response, "mice" worked to derail the ratification of the treaty by motivating public opposition. This "recursive dynamic" leads to unintended consequences: while IP rights holders and beneficiaries seek to reinforce their privileged positions, their actions lead to reactionary movements that highlight the concerns��of stakeholders that are often unrepresented.

Professor Haggart further explored this situation by presenting a paper based off of work included in his new book, . The pervasiveness of digital technologies in daily life is contributing to a rising public interest in copyright issues and reform initiatives. The international protests over ACTA as well as the and reflect this rising concern that digital copyright – and IP reforms – are not attending to the interests of citizens and users. As Professor Haggart argues, it is becoming increasingly��more difficult��for digital IP reforms to be passed in domestic legislatures due to vocal opposition and processes that are becoming increasingly polarized.

, assistant professor of communications and multimedia at McMaster University, then shifted the discussion to the role of IP law in the economies of so-called rising states. In a co-authored with , professor of political science at the Université Libre de Bruxelles, Bannerman discusses how South Korea and Japan moved from having economies based on importing IP-intensive goods to "innovation exporters" that favour strong IP protection. Borrowing Sell’s metaphor, Bannerman and Morin ask, "what would happen if, in the course of this pursuit, one of the mice progressively transformed into a cat?" Their paper finds that prior to becoming IP-exporters, these countries relied upon relatively lax positions towards foreign IP as a means of benefitting from technology transfers. However, once IP based��domestic industries��were established, concern shifted towards stronger IP protection in order to benefit and maintain these domestic champions.

The final presenter, , a doctoral candidate in the Department of Political Science at The George Washington University, focused on how countries in the global South are turning towards traditional knowledge (TK) protections as a reaction to the international IP regime advanced by the WTO—in the —and the US via bilateral and plurilateral trade agreements. In an exhaustive mixed-methods survey, Mr. Michael finds that there are now more than 70 countries that are protecting TK through national legislation. He describes this as a form of "reactive diffusion" where countries enact TK legislation to increase their domestic advantage in certain sectors, as a counter balance to disadvantages imposed by international obligations to increase IP protection in other areas.

Having surveyed different, albeit overlapping, aspects of the current state of global copyright, IP, and��politics, the panel ended with comments from discussant , the Canada Research Chair in Law, Communication, and Culture at 91��ɫ. (Note: Professor Coombe is the Chair of the author’s dissertation committee) Professor Coombe has written extensively about the intersections of copyright and IP law, culture, political theory, and anthropology. Her comments helped tie the papers together and raised further questions regarding the future of copyright and IP law in a global context. In particular, she highlighted how attention must be given to local, community, and domestic circumstances in order to understand the rights, norms, and concerns that various "stakeholders" bring to these scenarios.

The future of global copyright and IP regimes is broad, in terms of the issues at stake, and far from certain. This panel highlighted some of the key issues at play and emphasized the need for continuing research in order to understand the current state and future make-up of IP law.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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Dispute Details

The Typo Keyboard is a $99 iPhone case that attaches an extended QWERTY keypad to the bottom of the phone. The accessory’s keypad closely resembles that seen on BlackBerry devices.

Blackberry filed the lawsuit with the US District Court for Northern California, the home state of Typo’s operations. The filing accuses Typo of infringing keyboard patents , , and . BlackBerry is asking for an injunction as well as an eventual jury trial.

������������������’s Position

������������������’s claims rely on two main points, namely that the Typo keypad is a clear and intentional misappropriation of ������������������’s trade dress, and also that the trade dress is a key and distinctive part of Blackberry’s value proposition. (Trade dress is a term of art referring to an item’s visual characteristics which act as a source identifier. The concept is similar to the "distinguishing guise" in Canadian trade-mark law.)

“This is a blatant infringement against ������������������’s iconic keyboard, and we will vigorously protect our intellectual property against any company that attempts to copy our unique design,” said BlackBerry General Counsel and Chief Legal Officer Steve Zipperstein about the suit. “From the beginning, BlackBerry has always focused on offering an exceptional typing experience that combines a great design with ergonomic excellence,” continued Zipperstein. “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”

������������������’s outlines in great detail, and with images, its keyboard’s intentional design functionality. Shapes, curves and frets are all included in the intellectual property rights that BlackBerry holds and argues Typo’s keyboard infringes.

Typo’s Response

Typo argues that the QWERTY keyboard is too long-standing to be patented, and that they put significant work of their own into creating their product.

Typo initially responded with this comment to :

“We are aware of the lawsuit that Blackberry filed today against Typo Products. Although we respect BlackBerry [sic] and its intellectual property, we believe that ������������������’s [sic] claims against Typo lack merit and we intend to defend the case vigorously.��We are excited about our innovative keyboard design, which is the culmination of years of development and research.”

Author Analysis

I have to admit, even as a BlackBerry fan, I found Typo’s initial messaging compelling. It seems unrealistic for there to exist a patent on a QWERTY keyboard slapped onto a mobile device. Surely the degree of ubiquity is such that any specifications can’t matter immensely.

������������������’s filing, however, outlines the extensive thought and detail poured into its keyboard. Reading the filing is like catching a glimpse of the recipe for Blackberry's "secret sauce".

Lines like, “… the Bold featured the use of curved bars (referred to as “frets”) above each row of keys. Each of the keys in the top three rows is a roughly square shape, and arranged like the keys on a piano, without any significant space or material between them horizontally,” and “The Q10’s physical keyboard continues to incorporate bars above the rose of keys having the distinctive sculpted appearance of the thumb-optimized ergo-surf design,” make it apparent that the BlackBerry keyboard was not a happenstance success, but rather a major consideration in ergonomics and design.

More to the point, to me it seems as if the Typo keyboard is a direct replication of this design. In that opinion, I am not alone; the tech community also the similarities.

Even Seacrest hinted at the genesis of the Typo keyboard in . When the interviewer commented, “So it’s the best thing about the BlackBerry, within the iPhone,” Seacrest's response was: “That’s kind of how this came to fruition.”

������������������’s confidence in their claim is evident in their choice for jury adjudication. It takes a strong claim to believe that a citizen jury will appropriately comprehend the basis for a claim in a technology patent case. But again, based on the detail of ������������������’s intellectual property rights and the initial response of tech commenters openly admitting the design similarities of the devices, the claim appears to have merit.

From a legal perspective, the most rational response is likely for Typo and BlackBerry to settle, with Typo paying a portion of profits to BlackBerry in design royalties.

From a business perspective, however, BlackBerry may wish to take this to court to permanently shut down Typo’s production. In the grand scheme of the smartphone wars, allowing the existence of any product that allows non-BlackBerry devices to sport a Blackberry-esque keyboard is a threat to BlackBerry's market share and profits. The smartphone market is intense, with companies involved constantly jockeying for positions better than the rest; BlackBerry could easily decide that committing to a legal battle and winning it outright is more important than ceding any ground that will undermine its competitive advantage.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

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As I wrote at the time of the last , the Government of Canada has been working on a strategy to position the country to benefit from the so-called "digital future" since May 2010. Four years and three Industry Ministers later, this strategy has not yet been formally announced. Now, with the , at the helm of the Industry portfolio, the broad contours of this plan appear to be becoming clear. At the time of the , then-Industry Minister Tony Clement that ‘improving Canada’s digital advantage’ would foster “a more prosperous and successful Canada [that] will ensure a better quality of life for all Canadians.”

In order to do so, Canada’s Digital Economy Strategy – or an ‘iCanada’ framework – should address four intersecting areas: infrastructure, intellectual property, incentives, and interface. These policy areas contribute to economic growth and human development by affording individuals, communities, and companies to benefit from opportunities associated with digital innovations.��

Infrastructure

The greatest number of Canadians will only succeed in digital environments if they have access to necessary technological and human resources. In the evolving ‘digital age’, access to broadband and network communication technologies will be essential. An , where Canadians living outside of city-centres or their suburbs are often unable to join the ‘information superhighway’ to the same extent—and with the same speeds—as those based in more urban areas.

seeks to address this issue by offering a five-year, $305 million fund “to extend and enhance broadband Internet service for Canadians in rural and Northern communities” (p.8). (a technology analyst and consultant who co-organizes the annual ) states that this is an encouraging sign. However, the specifics of this fund will need to be clarified. Furthermore, the download speed target of 5mbps by 2019 is unambitious when compared to other jurisdictions and will not immediately address the situation. Professor (the Canada Research Chair in Internet and E-commerce Law) points out that while . With the fast-changing nature of digital technologies, in five years' time, this goal will be outdated. It is my opinion that the Government of Canada needs to reassess this goal to account for current needs and future realities.

Another barrier to technological adoption is cost. Canadians located in areas where high-speed broadband is available are faced with relatively high costs to access these services. A 2013 report from the Canadian Radio-television and Telecommunications Commission (CRTC) , they remain higher than prices in the United Kingdom, Australia, France, and Japan. For many lower-income Canadians, these prices are prohibitive. Budget 2014 renews the ‘Computers for Schools' program with $36 million over four years (p. 77). This is a welcome step, which recognizes that “a vibrant economy requires that students have access to the equipment they need to acquire the skills that will prepare them to fully participate in the digital economy” (p. 77). Unfortunately, the Computers for Schools program does not address the issue of what happens once students leave the classroom. As Mr. Goldberg has , “we should be looking at making PCs and computers part of our social safety net in Canada, re-targeting subsidies based on financial need, not based [solely] on geography”.

The technological infrastructure necessary for a Digital Economy Strategy should also enhance the human and social capacities required for leveraging digital technologies. Although a provincial responsibility, education will be key moving forward. Budget 2014 offers “more than $1.8 billion in new funding committed to the Canada Foundation for Innovation to support research infrastructure at universities, colleges, research hospitals and other not-for-profit research institutions across Canada” (p. 75). Part of this fund will go towards the country’s Granting Councils, which provide funding to researchers, scholars, and students in post-secondary institutions. For example, the Social Sciences and Humanities Research Council (SSHRC) has . These types of funding programs will allow scholars and graduate students to conduct necessary research for understanding and extending Canada’s place in the digital realm. (Disclosure: the author holds a Doctoral Fellowship with the SSHRC).

Intellectual Property

The ‘basic’ research carried out in public institutions, and funded by the public purse, should contribute to the public good. Intellectual property (IP) created in public institutions can be used to link this research and spur research & development (R&D). Budget 2014 proposes $3 million in funding (over three years) to fund an 'Open Data Institute' (p. 122). This Open Data Institute “will play a role in aggregating large datasets, informing the development of interoperability standards, and catalyzing the development and commercialization of new data-driven apps” (p. 123). This project will help provide opportunities to make creative applications out of valuable information and knowledge.

These goods and services are valuable in domestic and global contexts. As Nobel Laureate Joseph E. Stiglitz , “intellectual property regimes are a key component of innovation policy frameworks and the ongoing evolution of a globalized knowledge-based economy” (pp. 1696-1699). This globalized framework necessitates ensuring that Canada’s IP regime adheres to international standards while maintaining policy spaces for meeting domestic objectives.

In , (a senior partner at McCarthy Tétrault and an adjunct faculty member of IPOsgoode) points out where Budget 2014 proposes to align Canadian IP law with international treaties and trade agreements. In particular, the Budget “proposes to modernize Canada’s intellectual property framework by ratifying or acceding to the following widely recognized international treaties: the Madrid Protocol, the Singapore Treaty, the Nice Agreement, the Patent Law Treaty and the Hague Agreement” (p. 108). Coupled with the recent , Budget 2014 demonstrates that Government IP policy has largely been set.

Incentives

Intellectual property protections are but one way of incentivizing entrepreneurship, growth, and development. Historically, ��incentivizing innovation. In , and , from the Information Technology and Innovation Foundation in Washington, D.C., outline a number of other incentives that governments are using to encourage existing companies to become more innovative as well as to attract foreign investment, and to encourage foreign companies to operate within their jurisdictions (p. 171). These measures include stable R&D tax credits designed to spur creative activities and inventive research and development. For example, so-called 'patent boxes' allow income derived from the sale of patented products and technologies to be taxed at a lower rate than other income (p. 172). As well, preferential tax treatment can be given to ‘young’ or ‘start-up’ companies (p. 173) and governments can remove complex bureaucratic processes for starting new companies (p. 176), which may otherwise deter creative endeavours. So-called government red-tape is for companies attempting to work across a number of provinces. The Government of Canada should review tax policies with these objectives in mind while also ensuring that such reforms contribute to general, ‘middle class’ economic opportunities by maintaining social and political objectives.

Interface

A Canadian Digital Economy Strategy should recognize that the federal government cannot be the sole driver of the country’s digital future. Instead, a proper combination of infrastructure, IP, and incentives can empower Canadians to capitalize upon emerging opportunities. Interface and interaction between the provinces, municipalities, communities, industry, and academia are essential for this to occur. This type of helps bring theory into practice in order to capitalize on Canada's research strengths. ��A from the University of Toronto’s highlights how linkages between industry and universities help create ‘regional innovation systems’ or ‘clusters’, which contribute to regional economic growth through knowledge transfer (p. 5). These ‘clusters’ capitalize upon the intersecting interests and expertise of researchers, practitioners, and entrepreneurs to generate creative and innovative outcomes. Ryerson University’s , the , and the network are examples of this type of interface across sectors that often work in isolation. The federal should continue to be supported in order to promote cross-country linkages and opportunities.

The fact that it has taken some four years for the Government of Canada to craft a Digital Economy Strategy demonstrates the complexity of the task at hand. However, a close reading of Budget 2014 shows that the release of such a strategy might be drawing nearer. In order to capitalize on current conditions and emerging opportunities, an ‘iCanada’ strategy that address infrastructure, intellectual property, incentives, and interface issues will help position the country and Canadians to benefit and thrive in the coming years.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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In 2011, two American senators introduced the to congress, designed to attract immigrant entrepreneurs and make special visas available to them.�� Similarly, Canadian Minister of Immigration Jason Kenney that a new start up visa program for Canada will be unveiled later this year.

But one country is already out in front.�� Through its Ministry of Economy, Development and Tourism, Chile has developed an innovative program of its own called .�� The purpose of SUP is to attract foreign entrepreneurs to Chile by providing them with grants of up to 90% of total project costs, up to a ceiling of $40,000 USD.�� In return, foreign entrepreneurs are expected to incorporate themselves into the national enterprise environment, stay in Chile for at least six months, create a business headquartered in Chile, employ local talent, attend programs and workshops, attend meetings with potential investors and develop and disseminate at least three English-language articles in international media that describes their experience.�� In short, the expectation is that foreign entrepreneurs will have a social impact on the local environment.

As of June 2012, have been implemented in Chile over the course of the pilot and three successive application rounds.�� The projects span all industry areas, with the greatest percentage falling into the Social Media/Social Networking, E-Commerce and Education categories.�� Although Chile’s legal system is governed by a civil code, its laws, including contract, corporate, securities and competition laws are similar to Canadian laws in many ways, and Chile wants foreign investment.�� The result is a predictable and consistent business environment that is growing in the context of a hospitable economic climate.

SUP’s participants are governed by legally binding contractual obligations to the government and supported through a governance framework that includes monitoring, evaluation, and corrective measures.�� In addition, a social support system is in place to manage participants.�� For example, industry “tribes” have been created, where participants can share experiences and problem-solving techniques.�� So far, participants have raised $7,860,000 USD in investments.�� While it is too early to assess long-term impact on the local economy, success stories of social impact are plentiful.�� Participants give back to the local community by mentoring local entrepreneurs and teaching classes and seminars. They are learning from all those they interact with in Chile – other participants and locals equally.�� The projects are also truly innovative and many Canadian entrepreneurs are participating.

The Canadian program is markedly different from Chile’s program.�� Under the Canadian model, entrepreneurs would be granted a special limited-term visa, if they have been identified by venture capital funds as suitable candidates.�� Those funds would then be required to invest.�� While Chile’s program requires participants to meet with investors, it does not require that investment capital be in place prior to participation in the program.�� The difference in approach is largely driven by Chile’s current place in the global economy, its political history and what it wishes to achieve.�� Canada occupies a higher position in the global economic pecking order and therefore the focus, requirements and desired outcomes of its program are very different.

From a legal perspective, setting aside the immigration law and other regulatory issues, the most important legal issues will likely centre around commercialization of the intellectual property immigrant entrepreneurs create.�� Presumably, venture capitalists will want partial or complete ownership of the intellectual property rights. ��It will take a very savvy entrepreneur to bargain a fair deal with capital investment and a visa hanging in the balance.�� Even then, once ownership is determined, as Professor Yu rightly noted , enforcement of ownership rights across borders is not reliable.�� There are two issues.�� First, the definitions of intellectual property are not harmonized around the world.�� For example, something may be patented in one country but .�� The result is that there are no ownership rights to enforce in the latter jurisdiction, diluting the value of the bargain initially struck.�� Second, even where there is consensus on property rights and obvious enforcement obligations, those obligations may .�� With these two issues in mind, the questions become: How reliable and stable is an investment in entrepreneurial talent that has been given no incentive to stay beyond the limited term visa they have been granted?�� Will that talent be able to capitalize on the gaping holes in the swiss cheese that is the international intellectual property law framework?�� And, from a public policy perspective, is there something to be said for the Chilean model of mutual support and investment that will keep talent and property in that country?

Sheerin Kalia is a Visiting Scholar at Osgoode Hall Law School.�� Sheerin has taught International Business Law at both the college and university levels and is the author of , as well as numerous articles on corporate/commercial law topics.�� Sheerin was a Visiting Scholar at the University of Chile, School of Law in Spring 2012.

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This post elaborates on the concept of criminal theft of IP, which I discussed at length in a with respect to software code, in the form of scientific research. In laboratory science, it is customary to keep a , which details all research conducted, including methodologies, applied results, and interpretations. The notebooks are the ultimate reference for raw, unaltered data, and are essential for troubleshooting and the transfer of knowledge within labs between experiments. Upon leaving a lab, graduate students and lab technicians typically leave their notebooks in the lab of the principal investigator (PI), who is the recipient of grant funding for the research project. However, the question of IP ownership becomes murkier when the PI is the individual looking to take possession of their notebooks and materials upon leaving an institution, .

With available in North America for public research, scientists are very secretive and protective of their results, as they are all striving to publish novel, groundbreaking work and posture themselves to procure funding. Thus, it stands to reason that Dr. Mikovits would want to take her work with her so that she could continue to continue her progress and publish her results elsewhere. However, in instances of potential IP theft, is the criminal court the proper venue for these matters?

The State of Nevada has suggested, despite Dr. Mikovits’ initial arrest, that no, these matters should be resolved by civil action. However, it has been suggested that the prosecutors withdrew the charges as a result of the of the CEO of WPI. Thus, the question of the criminality of such alleged IP theft may come up again in the future, particularly with the of the realm of science that is the result of scarce funding.

Even in Dr. Mikovits’ case, it is unclear that the criminal charges should have been withdrawn seven months after the charges were laid. Despite being a leading investigator, she was the employee of a research institution, relying heavily on their staff and equipment (not to mention the salary that she was paid). Although she should be afforded some sort of protection for her time and work, institutions should have guarantees as well. Most public research grants are administered to the individual under the condition that they are that moderates the funding process. Thus, the institution retains partial control of what is ultimately government-funded research. It is that researchers make publicly funded research available to the public-at-large, and the institution cannot ensure this if they do not remain in control of the data collected.

With respect to the factual nature of the criminal allegations, the charges in the present matter may have been dropped due to a technicality in what was already sure to be a complicated and landmark criminal matter. Dr. Mikovits did not personally remove the notebooks detailing her research, but had a . Should this factor into the concept of theft? Is “counseling to commit intellectual property theft” too far beyond the scope of what the criminal laws should regulate? These are questions that have not yet been answered in the courts, and are a minutia of the bigger issue of IP theft in science.

Whether criminal courts are the proper venue for IP theft is still open to interpretation, and unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft. However, the results of the will be particularly interesting to follow, as there are various interests at stake, namely: WPI (the institution), Dr. Mikovits (the researcher), and NIH (the government funding agency). The balancing of interests may set an important precedent and guidepost for how scientific research is both conducted and funded in the future, as this IP discourse between an institution and a former researcher is unprecedented.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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