After two and half months at VL, I feel better prepared and more confident in my decision to pursue IP law.

Every day at VL was different.  For the most part, my role involved gathering and interpreting IP law information for entrepreneurs and VL staff.  To do this, I was often asked to meet one-on-one with entrepreneurs who each had a unique set of challenges and motives for seeking information on IP. Some entrepreneurs were well versed in the material, while others knew that IP protection was important but not why? Through this experience, I developed a greater understanding of the business reasons behind decisions on what IP to protect, when to move forward with registration/filing, and where.

My major project for the semester was organizing and speaking at an for entrepreneurs, co-sponsored by Miller Thomson, IP Osgoode, and VentureLAB.  The event was a success with full registration and an active and engaged audience.  Despite some nerves, I was grateful for the opportunity to practice my presentation skills to a large audience and to hear about the challenges faced by the 91��ɫ business community.

Of the many lessons I learned through the IP intensive, here are some of the amazing attributes of VL and why other students should consider seeking this opportunity:

Shockingly excellent client service

VL set an excellent example of what good customer service means. From day one, I felt a unique soul of the building and the people. The staff was friendly, passionate, and incredibly focused on supporting entrepreneurs regardless of the requests. For example, all staff documented and shared stories at team meetings of “shockingly excellent customer service”. This and other initiatives speak to the client-centred mindset of VL’s CEO Jeremy Laurin, Board of Directors, and staff.  I believe this experience will help me provide better client service, which is crucial in the legal profession.

Exposure to future innovations and technologies

Almost every day, I met or learned about a new technology or invention. Often, I would ask when can I buy one of these? Being exposed to future businesses and trends will help frame my future practice and allow me to better understand and meet the needs of different business sectors.

Entrepreneurial spirit

Everyone at VL has an innovative spirit that makes even the most conservative person wonder why he or she never pursued that idea, dream, or opportunity. I believe this type of thinking will help me approach the law and life with creativity, greater drive, and with less fear of failure.

One-on-one guidance from a legal mentor

Eugene Gierczak from Miller Thomson was my legal mentor for my placement. He met with me one-on-one to answer questions and to instruct me on different areas of IP law. While at school, it is rare to receive one-on-one training from a senior partner at a law firm.

Overall, my placement was an excellent experience.  I would encourage other students to consider the IP intensive and ventureLAB.

Amanda MacNaughton is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s .  As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Canada has been described as a functional food  because of our academic expertise, raw agricultural materials, and proximity to the US.  In fact, Osgoode’s home base recently topped a number of globally innovative cities with the USPTO.

Given the patent system’s supposed ability to , should we look to patents to drive R&D to create healthier foods?

Functional Food Patents

Functional food inventions can be if they fall under patentable subject matter and are new, non-obvious, and useful. The discovery of a functional food that already exists in nature will not be patentable (e.g. pomegranates). Also, blueberries may not pass the innovative mustard. Higher life forms, for example a, are barred from patenting while have squeaked through.  Examples of functional food patents that have met the legal requirements include a of preparing probiotic cereal flour and fish proteins.

Overall, it appears that functional food patents are a relatively market.  Considering their potential, why are inventors only starting to focus on functional food patents in Canada?

Patent Claims vs. Health Claims:

To redeem the significant financial investment required to obtain a patent, intellectual property owners often look for a market to sell or licence their invention. In Canada, functional foods are regulated under the  as either a (NHP).

Depending on the food or NHP categorization, functional foods will be subject to different for safety, labelling, advertising, and post-market surveillance. Both regulatory regimes what can be said about health on labels and other promotional materials and bar false and misleading claims.

In addition, new functional foods (and ingredients) must go through a government approval process for safety and a separate process for new health claim approval. The food and NHP (to a lesser extent) regulatory environments may prevent or severely limit IP owner’s ability to tell customers about health benefits.  Ultimately, this may represent a and could factor into the cost/benefit ratio for investing in R & D and the patent process.

Ethical Eating?

Patenting food cooks up similar ethical and moral pressure points as patenting pharmaceuticals and biotechnology, such as increased costs, barriers to life saving treatment, and bio-piracy.

Obesity and chronic disease are now a global problem that affect medium to low income countries. Higher food costs related to patents could increase food insecurity and inhibit further economic development in poorer countries burdened by healthcare costs.

Fruit, Vegetables, and Whole Grains Already Exist!

Unlike infectious diseases, we can often obesity and chronic diseases by eating a healthier diet, exercising, and reducing stress. Why do we need more innovative foods when the old ones still work and are pretty cheap? Furthermore, patenting foods may go against the grain of and other local, organic, and simple ingredient food movements.

Safety and Health Washing:

The recent recall demonstrates the importance of safe food. While our food regulatory system may be cumbersome, there is likely a strong rationale for safety precautions and scientific and administrative barriers. In addition, allowing generally unhealthy food (high in salt, sugar, or fat) to carry health claims related to patents could open a whole new can of sour worms!

Wherever you stand on patenting as a means of driving R & D investment into healthier food, it is something we need to continue to explore. If Canada is truly a functional food powerhouse, we may be missing opportunities to improve our health, grow our economy, and create jobs. On the other hand, the patent system may be the wrong tool and could have negative health, economic, and ethical consequences.  Either way, hopefully others will continue to chew and digest on the potential use of the patent system to stimulate R & D into healthier food.

Amanda MacNaughton is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

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Halloween came early for those seeking computer related patents in the UK.  The treat stems from a recent , which ruled that examiners should take a narrow view of the mental act exclusion, broadening the types of computer related software eligible for patentability.

Under section 1 of the UK , a patent may only be granted if the invention is new; involves an inventive step; and is capable of industrial application.  The Act also excludes the following (among other things) from the definition of invention: anything which consists of a discovery, scientific theory or mathematical method; a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever; a scheme, rule or method for performing a mental act, playing a game, or doing business, or a program for a computer; and the presentation of information.

In the High Court case , a world leader in products and services for the oil and gas sector, challenged the assessment of four patent applications rejected by the UK Intellectual Property Office (IPO). Since the four applications were based on similar issues, the court focused solely on one pertaining to a method of designing a drill bit using computer finite element analysis to determine the optimal drilling parameters.  The final result of this invention is outputted to a resource (such as a computer printer) and does not include a mechanical step.

The that the invention was a method of performing a mental act and that UK law interpreted this exclusion broadly encompassing any method that is theoretically capable of being performed in the mind of a person. Furthermore, the invention was excluded from patentability as a computer program, because the technical details listed in the claim about how the computer simulation is performed cannot amount to distinguishing features for the purpose of patentability of computer programs under UK law, and also as a mathematical method.

In the end, the court determined that the invention is patentable despite using computer software.  Judge Birss QC clarified that recent jurisprudence has clearly established that an invention that makes a contribution to the art, which is technical in nature, is patentable even if it is implemented entirely on a computer and even if the way it works is entirely as a result of a computer program operating on that computer. With respect to the breadth of the mental act exclusion, in paragraph 63 of the Judge Birss QC stated “the correct scope of the mental act exclusion is a narrow one. Its purpose is to make sure that patent claims cannot be performed by purely mental means and that is all. The exclusion will not apply if there are appropriate non-mental limitations in the claim.”  Thus, allowing the appeal and reaffirming that computer implemented inventions are indeed patentable .

Following the decision, the IPO has now posted a informing applicants that examiners will now be taking a narrow view of the mental act exclusion.  Such that, future claims relating to computer implemented inventions will not be automatically be considered excluded from patentability as a mental act.

The decision has many implications for patent applications in the UK. First, the decision may bring the IPO’s position on excluded subject matter closer to that of the .  More broadly, the decision and updated guidance may bring the scope of patentability closer to that of other jurisdictions (like , and ) where computer implemented software patents are more widely available.  The judgment .   Judge Birss QC remarked in the that patent applicants may have avoided referring to computers in their claims for fear of rejection, making claims more complicated than required. The decision will hopefully result in greater comfort in the use of computer related claims and improve efficiency in the approval process.  Overall, the IPO policy shift helps the metal act exclusion and could result in a greater number of computer related patent approvals.

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