The  (IRAP) and the  (IPIC) have partnered to offer the  program for Canadian small and medium-sized enterprises (“SMEs”). IPilogue readers may have seen ’s&�Բ�����; of another CIC program, , which provides funding for a similar purpose through a different government channel. That article outlined the motivation behind these types of programs and summed up that  Canadian SMEs often lack access to the means to protect intellectual property (IP) and highlighted a clear economic need for innovative Canadian businesses to improve their IP commercialization.

NRC IRAP, CIC, and IPIC

The NRC IRAP provides a range of innovation support services for Canadian SMEs. The program offers funding, advisory services, and networking opportunities to help SMEs undertake research and development (“R&D”) and to commercialize, and improve their competitiveness in domestic and global markets. IRAP also provides support for technology adoption, productivity improvement, and business expansion. On February 16, 2023, the Government of Canada announced that NRC IRAP will be integrated into the  (CIC).

The CIC will be a new, operationally independent organization solely dedicated to supporting business R&D across all regions and all sectors of the economy. It is a federal initiative that will be  that aims to “play an important role in building a stronger and more innovative Canadian economy for generations to come.” The CIC will include an umbrella of programs, including both IP Assist and ElevateIP, to support the development and exploitation of IP.

IPIC is Canada’s professional association of patent agents, trademark agents and lawyers practicing in all areas of intellectual property (“IP”) law and is comprised of over 1700 members.  is to match SMEs with IPIC members who practice in their specific industry. The IP professional will help SMEs better understand the key aspects of IP and how it can support their business goals.

The IP Assist Program

There are three levels to the IP Assist Program — levels 1, 2 and 3 (L1, L2, L3, respectively). Each level brings :L1 – up to $1k, L2 – up to $20k, L3 – up to $20k+), as well as increasing engagement with an IP professional matched to the SME:

The L1 IP Awareness is a one-to-one IP awareness session during which an IP professional will provide industry-specific IP information and guidance to an SME. Engagement at L1 provides IP professionals with an opportunity to connect, support and guide innovative Canadian SME to help them achieve their business goals. Engagements with SMEs will take, on average, up to 3 hours and include an IP awareness presentation followed by Q&As.

The L2 IP Strategy relates to the IRAP SME’s specific technology space, aligns with the IRAP SMEs business objectives, and provides IRAP SMEs with specific prioritized IP actions. The IP Strategy must be informed by key relevant information relating to the technology and competitor landscapes relevant to the IRAP SMEs.

The L3 IP Implementation relates to detailed IP asset assessments, such as IP audits, trademark clearance searches, prior art searches and analysis, advice on branding strategy, legal analysis of IP landscaping, patentability analysis, licensing strategy formulation, and other activities. However, some patent and trademark preparation services and filing fees may not be covered.

Conclusion

Canada’s investment in the CIC indicates that there is an increased focus on innovation as a driver of economic growth. There is also a clear aim through programs like IP Assist and ElevateIP to ensure that IP generated by innovative SMEs in Canada are carefully strategized for and well-protected. Hopefully, this increases Canadian presence in innovation and brings greater investment in R&D into Canada.

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Top Row: John Heburn (CEO, Mitacs), Androu Waheeb (IP Innovation Clinic Fellow), Naseem Bawa (General Counsel, InteraXon Inc. Bottom Row: The Honourable Doug Downey (Minister of the Attorney General of Ontario), Prof Pina D'Agostino (Founder & Director of IP Osgoode), The Honourable Ross Romano (Ontario Minister of Colleges and Universities)

Yesterday, the Government of Ontario formally announced their funding of thousands of student internships through Mitacs. The announcement was made during a press conference held by the Honourable Ross Romano, Minister of Colleges and Universities, and featured the Honourable Doug Downey, Attorney General of Ontario, and John Hepburn, CEO of Mitacs. As Principal Investigator of 3 projects in the inaugural year of Mitacs' Business Strategy Internship (BSI) Program, Prof Pina D’Agostino was also invited to be part of the festivities, along with Naseem Bawa, General Counsel for InteraXon Inc., and Androu Waheeb, 1L IP Innovation Clinic Fellow who will complete a BSI at InteraXon this summer.

Minister Romano announced that the Government has granted $39.5 million to Mitacs to fund internships that give students, post-doctoral researchers, and businesses more hands-on, real world experience in the field of their choice. Of the hundreds of internships offered across the country, roughly 100 are in their intellectual property stream.

Ministers Romano and Downey repeatedly stressed the importance of investing in Ontario IP rightsholders and empowering SMEs to take advantage of the intangible economy. In particular, Minister Romano pointed out that foreign entities take advantage of Ontario’s IP resources which remain inaccessible for local innovators. As such, this internship is not only an important investment for potential rightsholders, but also for students who will be business-owners commercializing IP and lawyers protecting their rights.

Mitacs CEO John Hepburn stressed the importance of this new collaboration in helping businesses to succeed at every stage of their journey. In the context of Mitacs’ goal of promoting growth and innovation in Canada, Mr. Hepburn introduced the goal of the BSI program: helping SMEs to address specific needs in order to pivot their businesses in response to the pandemic. In particular, because IP literacy is crucial in the early stages of a business, many student interns will offer valuable IP insight (with academic supervision) to help SMEs develop IP strategy in the initial stages of their business.

Prof D’Agostino spoke for the huge impact that this program will have on the students involved and the experience that it offers for them. After a quick but forceful plug for IP Innovation Clinic’s work in supporting IP strategy for SMEs to date, she highlighted our students’ growing need for employment opportunities like this. The combination of education with intention and work with grassroots organizations in turn empowers the Canadian economy.

Naseem Bawa briefly spoke about InteraXon Inc’s strategic IP investments protecting a wide range of their innovations, and the importance of protecting IP for small businesses. Businesses, according to Naseem, need a layered approach to IP that goes beyond registering it: they need support to enhance, protect, and strategically enforce their IP rights. This takes time and resources, but is critical for the future of both Canada and its companies, further stressing the impact of programs like this. Androu Waheeb rounded out the speakers, expressing his sincere gratitude for this opportunity and the ways in which it will prepare him to follow his dream of becoming an IP lawyer.

We would like to thank the Government of Ontario and Mitacs for supporting this program and our incredible students, whom we wish the best of luck in their internships!

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Consider X. X has an engineering degree and works for the automotive industry. X also enjoys cooking. Once, preparing a Thanksgiving turkey, X places it in the oven for about eight hours. The constant watching, basting, and turning process is daunting. X, being an engineer, approaches this as an engineering problem and comes up with a solution – a new device, one that will be able to reduce fowl cooking time by about 50%. X thinks about starting a new business making the devices and selling through online platforms and dedicated cooking stores in North America and Europe – everywhere there is a habit of cooking whole fowl. X plans to manufacture the devices in China and ship them by sea.

X is considering securing investment and is concerned with counterfeiting. As a remedy, X decides to file a patent.

Y is a designer. On top of being a designer, Y is a new parent, occupied with changing diapers among other things. One night, when the baby sleeps, Y is considering changing a diaper – an activity that will prevent a future diaper rash, but may wake the baby. There is no way of telling whether the diaper is dry. In the morning, Y comes up with an invention – a diaper that will include a moisture sensor and an indicator. Y decides to start a business, arrives at a working prototype, and licenses the invention to one of the biggest diaper manufacturers.

Naturally, both X and Y have great ideas at hand – but will an engineer and a designer be able to run a successful businesses? While being a complex question, it is at least partially addressed through a small but essential step – a patent search. In both cases, the entrepreneurs were quoted 1000USD for a patentability search and 5000USD for FTO search in US – in other words, the questions of novelty and litigation risk were addressed ahead of time, Since both inventions are likely patentable subject matter, – patent and non patent literature publicly available to date - can provide a huge insight into the success of the business – from both patentability (will my patent application be granted?) and Freedom To Operate (FTO) (Can a product be placed on a particular market without being sued for patent infringement?) perspectives. The availability – and accessibility – of patent information, the abundance of non-patent ques it incorporates, such as assignees, inventors, family filings – all make for the strongest argument pro-patent search. The ability to save the inventor from an expensive patenting endeavor (estimated at 25k USD to arrive at grant) by applying for a known invention, or putting a product on a market that would trigger an infringement claim, can both save time and research and development effort. Furthermore, the results of a search can deem the whole business pursuit unworthy. Moreover, the patentability search can identify patentable points that will guide later application drafting focus, can amend the research and development process .

For X, patentability searches indicated that his invention is novel, and revealed no FTO concerns. X proceeded, , and . For Y, the search identified both patentability and , so pursuit of the venture was deemed not feasible, thus saving a tremendous amount of “sweat equity” and monetary investment.

Alex Levin is an Osgoode Hall Law School LLM in IP 2020 Candidate and a managing partner of , boutique IP consulting firm providing IP portfolio management services to worldwide clientele

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It is undeniable that IBM has invested heavily in diversifying their patent portfolio. In , the company has been patenting in areas such as artificial intelligence, cloud technologies, security applications, blockchain, and quantum computing. In an interview Mark Ringes, Vice President and Assistant General Counsel for IBM, that

“We focus more broadly because any one of those areas might take off and be very successful for us and so we’re fortunate that we have a sizeable research and development budget … ultimately, some of those will hit, and for others we will decide that it wasn’t necessarily good money invested there, but we don’t know today what’s going to be successful four or five years from now.”

IBM’s ability to invest broadly is not a patent strategy that can be adopted by most companies, but their eagerness speaks volumes about their faith in the strategy and its ability to position the company to meet their mid and long term goals.��

In February 2020, IBM announced that current CEO and President Ginni Rometty will be stepping down in April and will be replaced by Arvind Krishna as CEO and Jim Whitehurst as President. Krishna is an IBM veteran who . Jim will continue as Red Hat’s CEO alongside his new role. The acquisition and leadership changes at IBM is a definitive signal that the company is invested in their cloud technology, but what does it mean for their overall patent strategy?

With Krishna and Whitehurst at the helm, IBM could be heading in an exciting new direction. IBM’s leadership in obtaining patents will likely remain unchanged, with Krishna continuing the tradition. Krishna, remarking on AI, cloud, and quantum computing, that “[o]ur work in these areas, and others, began long before there were practical enterprise uses for the technology, and that spirit of research for the sake of discovery is what has propelled us to lead the field in patent grants for more than a quarter of a century”. However, we may see the company shift how they use their patent portfolio. For decades, Whitehurst has been a pioneer for the open source movement. He has consistently discouraged patent aggression by committing Red Hat to not one, but two . With this philosophy, Whitehurst built up Red Hat’s platforms and created new business opportunities. In his new role, Whitehurst could convert IBM’s extensive and diverse patent portfolio into a more collaborative and innovative future. It remains to be seen how IBM’s patent strategy will change, but the combined experience and expertise of Krishna and Whitehurst gives IBM a breath of fresh air.

Written by Ryan Wong, a second year JD Candidate at Osgoode Hall Law School. He is a guest contributor with the IPilogue and is one of the Student Coordinators with the Innovation Clinic.

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Patent protection is a crucial consideration for inventors with new innovations. It ensures that innovation persists in the marketplace, and also guarantees some form of monopoly and profit for inventors who invest in engineering new solutions. However, the recent tension between Google and Sonos forces us to consider: how useful are patents to start-up companies with limited resources?

in two federal court systems for the infringement of five patents. For a collaboration in 2013 between Google’s music services and Sonos’ home speakers, Sonos shared the blueprints to their speakers— a mistake in hindsight which led to the alleged infringement on Google’s part. Sonos is seeking financial damages and a ban on the sale of Google’s speakers, smartphones, and laptops in the United States.

Beyond patent infringement related to the company’s wireless speaker technology that allows speakers to connect and synchronize with one another, the company makes an anti-competition argument: allegedly, tech giants Amazon and Google created an environment in which Sonos would be dependent on them, only to then use their leverage to “squeeze” the smaller company. Despite attempting to enforce their intellectual property rights against Google for years, Sonos has had no luck in attaining a resolution.

This type of lawsuit between Sonos, , and Google, , is . Similar cases have occurred between in relation to anti-competitive practices and between regarding trademark infringement.

Sonos was to innovate in the wireless home speaker market in 2005. While there is a benefit to being first in the market and to attain a monopoly for a specified time period, “bigness” in the technology industry threatens the enforceability of patent rights. For example:

• When Sonos initially found that Google was infringing its patents, it approached the company with a licensing contract. Google responded with a deal that would require them to pay next to nothing for the use of the technology.
• Where tech giants infringe on patent-protected technology, they can out-compete smaller companies by offering new devices at lower prices. Google and Amazon did this by selling their speakers starting from $50, while Sonos speakers typically start at $200.
• Large companies have significant negotiation leverage when it comes to exclusivity. For example, Google has maintained that it will pull its virtual assistant from Sonos’ speakers if users can simultaneously use other assistants from services like Apple or Amazon.

These factors put Sonos in the impossible position of having the right to monopolize a technology they developed, but not having any practical way to enforce these rights, due to a lack of resources and influence in the market.

This lawsuit is a reminder to start-up companies of the importance of a sound IP strategy before entering collaborations in the marketplace. It is important to consider what information should remain private and what protections contracts can ensure, such as an ability to freely collaborate with others in the marketplace (thus avoiding the exclusivity issue).

Written by Summer Lewis, a second year JD Candidate at Osgoode Hall Law School. Summer is also the Content Editor of the IPilogue.

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From conducting bench-top experiments to launching on-campus tech start-ups, Canadian post-secondary students play a crucial role in creating the IP that drives Canada’s innovation economy. According to Statistics Canada,. Presumably, this amount has only grown as Canadian companies have continued to at higher education institutions in the intervening years. Despite these investments, and a greater , many Canadian post-secondary students have only a limited understanding of IP and their own IP rights.

While post-secondary institutions have started to integrate IP education into their course offerings, these courses vary considerably from institution to institution and may not be accessible to all students wishing to enroll (e.g. many law programs feature IP courses, however, students from other programs may be prohibited from enrolling). While post-secondary institutions are likely to continue developing their own IP curricula, the Federal Government is uniquely positioned to bridge the gap for the time being by offering post-students access to reliable IP resources and programs (i.e. online resources, seminars, and/or courses). For example, such programs could be similar in structure and content to those proposed in CIPO’s 2017-2022 business strategy for small to medium sized business except tailored towards the needs of post-secondary students.

On June 7^th, 2017, the Standing Committee on Industry, Science and Technology (the “Committee”) on IP and technology transfer from post-secondary institutions to industry. According to the accompanying news release, the proposed study aims to: (a) review the various technology transfer practices and policies presently in use; (b) compare these practices nationally, and with the best international practices; (c) identify incentives for researchers to register IP; (d) identify incentives and practices for the private sector to identify and utilize post-secondary IP; and, (e) review partnerships between colleges, universities, government and the private sector. To date, nearly twenty interested parties have submitted briefs outlining their positions on the proposed topics and discussions are underway in Ottawa.

While not specifically outlined in the study’s aims, it would be arguably worthwhile for the Committee to consider the value of offering IP education to post-secondary students as a means of facilitating, and ultimately improving, post-secondary IP technology transfer. By offering students access to IP resources and programs from the onset of their post-secondary education, students would be entering the lab or the classroom with a more refined appreciation for the value of IP. This understanding would hopefully encourage students to innovate with IP as a primary objective of their work, rather than simply a by-product. This proactive approach to IP education would presumably translate into a greater overall IP yield from post-secondary institutions while providing students with a more nuanced understanding of their own IP rights.

William Foster��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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Artificial intelligence (“AI”) is a technical field of computer science that includes machine learning, natural language processing, speech processing, expert systems, robotics and machine vision. The term “artificial intelligence” is sometimes challenged in favor of machine intelligence or machine learning.

Machine learning automates decision making using programming rules and in some cases training data sets. Human subject matter experts can provide feedback on results as part of a training process. Machine learning can adapt its programming based on the training process and feedback. The data can be represented by various graph and network structures. For example, an artificial neural network or neural net is a system designed to process information by simulating the framework of biological brains. Deep learning involves abstract representations of data to optimize the machine learning process. Supervised learning uses labelled training data examples to infer functions that can be used for processing new data. A computer can predict or ”guess” the meaning of new data based on the training data set, graph and network structures, and feedback. Reinforcement learning involves rules to control software action in an environment to maximize a reward. Reinforcement learning may not need training data examples with labelled data sets.

Expert systems can solve scheduling, optimization, and planning problems. Speech processing includes conversion between speech (audio) and text. Natural language processing derives meaning, context, or sentiment in textual data using grammars and graph structures. Machine vision can detect patterns in visual content for object tracking, audio and face recognition, for example. Robotics involves the use of biologics systems to automate and mechanically control machine movements.

INTELLECTUAL PROPERTY FOR AI

Technology enterprises and start-ups are both competing and constructively working together to develop and deploy AI products and services. Companies and research institutions should clearly define and protect their intellectual property with registrations and documentation, especially when working with multiple third parties. A company may then control use of its IP rights, including permitted use under licensing and collaborative arrangements.

Copyright

Copyright automatically extends to computer code, visual interface features, audio, video guides, application programming interface (API) structure and other works. Computer code may cover particulars such as source code, pseudo code, machine code and purpose-built hardware or firmware. Copyright is an important intellectual property asset particularly if the program design provides computational and usability efficiencies. Ownership and confidentiality of the copyright should clearly be set out in a written agreement.

Companies may also benefit from placing digital locks on their products and services for security. Circumvention of digital locks is an offence in some jurisdictions and may provide relief against unauthorized parties. Companies should have policies for developers incorporating third party copyright, even if inadvertently, as it may impact ownership of the technology and freedom to operate. Employees or a contracted developer, for example, may incorporate third-party source code without authorization which may impact ownership.

AI systems involve large data sets. These data sets and algorithms are important IP assets for the company. Contractual terms with end users and third parties should clearly specify permitted use. Some jurisdictions provide specialized IP protection for database rights.

Brand

Brands may include a word mark, logo or icon protected as registered or unregistered trade-marks, the latter of which can prevent competitors from unlawfully passing off on or diluting the goodwill of a brand. Companies can develop their brands with quality customer service and trust to establish goodwill in their brand with customers and the general public. A strong brand helps AI companies differentiate their products and services from competitors. AI technology and algorithmic accountability can help a company develop good will for their brand. Companies are often stewards of important data, assets and documentation, a reputable brand may be of paramount importance to customers.

Trade Secrets

Trade secrets are common law rights that provide protection over secret business information, and may protect material such as confidential backend server processes, code and ‘‘secret sauce.” Trade secrets require no formal registration, but companies must also take reasonable steps to keep it secret. In turn, the protected information may be protected for an unlimited period of time as long as it is kept secret and has commercial value. Misappropriation (e.g., unauthorized use) of trade secrets is regarded as unfair business practice. Trade secrets may take various forms such as customer lists, source code and technical documentation, among others.

Trade secret protection has limitations, particularly if relied on as protection for vital company assets. Trade secret rights may be difficult to establish or enforce, and enforcement may be practically ineffective against third parties who obtain the invention indirectly from an unauthorized discloser. Trade secret protection may prevent collaboration and integration with other entities in developing AI products and services. Trade secrets also do not protect against independent development of the secret innovation by third parties.

Industrial Designs

Industrial designs can be used to protect visual features of physical articles such as electronic cards, transaction machines, as well as computer interfaces, animations and icons. Design protection can be a valuable asset, especially if a given feature helps promote the distinctiveness of the brand, products and services, or increases the usability of a product.

Patents

Patents provide a mechanism to exclude others from making, using or selling the patented technology, which may help companies obtain or maintain market share, and protect research and development investments. Patents can provide a competitive advantage, and may also be used defensively as a negotiation tool. Patent publications can also be cited against subsequently filed applications to prevent grant.

A technology development strategy should consider if patent protection is available for core technology innovation. Companies should also be aware of other publications and litigations, as competitors and other players may have their own patents or pending applications. In contrast with trade secrets, granted patents may be enforced against third parties that make, use or sell the claimed invention, despite independent development. Given the quickly evolving AI market, obtaining early priority dates is important in view of the ‘‘first to file” nature of the patent system.

Patent Eligibility

Generally, patents are granted worldwide for new, useful, and non-obvious inventions of patentable subject matter. Computer implemented inventions are under a greater level of scrutiny and not all AI related innovations are per se patentable. The jurisprudence determining whether technology is indeed patentable subject matter is constantly evolving. Patent offices, along with the courts, have struggled with establishing clear delineations of what is patentable and what is not patentable. Highlighting salient technical features such as technical advantages and practical implementation details can increase the likelihood of success during patent examination. The description should highlight discernible effects generated by the AI innovation or use case.

REMARKS

Current AI agents are winning games of Jeopardy and Go against human experts but the scientific field of cognitive computing is still relatively young. The notion that computers can simulate cognitive intelligence raises philosophical questions about whether the mind can be modelled and the ethics of programming machines for human-like decision making. Given the importance of data analytics, companies continue to invest in research and develop in AI to advance their processing and data mining capabilities.

An IP strategy for AI development and deployment will layer intellectual property rights to protect different aspects of the innovation. Companies can clearly define and protect their intellectual property with registrations and documentation. Clear agreements on intellectual property rights should be established between third parties to manage risk.

Maya Medeiros is a lawyer, patent agent, and trade-mark agent at Norton Rose Fulbright LLP Canada (Toronto). Maya Medeiros’ practice focuses on the creation and management of intellectual property assets in Canada, the United States and around the world.

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