Junghi Woo is a former IPilogue Content Manager, an IP Innovation Clinic Fellow and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

In 2020, a South Korean television and radio network,����that revealed one family’s journey in recreating their 7-year-old deceased daughter, Na-Yeon, through the technology of virtual reality (“VR”). VIVE Studios, a VR technology studio, used����to create this VR character.����

While this technology may not be as common in Canada, we should nonetheless consider the implications of introducing such innovations, especially when it involves minors. In fact, there exist several legal implications within Intellectual Property law (“IP”), such as the common law principle of personality rights.����In the case of Na-Yeon, her personality rights were used to recreate her VR persona.��

In Ontario, there exists a lack of legislation regarding the protection of both non-celebrity minors’ and adults’ personality rights. This presents a concern with the growing posthumous market and the commercialization of personality rights and potentially, of individuals’ digital assets used to “revive” the dead.��

Such technology is not novel. For example,����through his past text messages with his friends and family members. By using artificial neural networks,��. The result was fairly accurate and allegedly helped Mazureko’s loved ones’ grieving process. Companies such as����already have a patent that could create a digital clone that embodies people’s “mental attributes”.����a New Zealand-based software company, markets “digital humans” for enhanced online customer service.��

With Kanye West’s gift to his ex-wife Kim Kardashian��, and a��” industry derived from the pandemic, the posthumous artificial intelligence market is not too far from our futures. Firms such as����offer online chat bots based on one’s digital footprint to keep the bereaved to “stay in touch” with the deceased.��

Along with significant privacy concerns regarding the collection and use of individuals’ digital assets, the commercialization of such IP brings us additional questions regarding the safety of its target market. Mainly targeting grieving people, it is questionable as to whether companies will avoid exploiting the vulnerability of their emotional states and if they are able to deliver their services and products without risking their customers’ mental health. Those who grieve may seek to reconnect with the deceased and companies can monetize this vulnerability not only through their products, but their targeted advertisements. The possibility of the bereaved becoming attached to these recreations is another danger to consider. Without proactive legislation, we leave not only the deceased unprotected but the bereaved as well.����

The real question is, what would you risk to see your lost one once more?��

The post Commercializing the Personalities of the Dead: The Dangers of the Posthumous Market appeared first on IPOsgoode.

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Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

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Artificial intelligence (“AI”) is always popping in and outside of our news feeds. A prime example is Tesla’s newly announced AI-powered robot, the Recently, AI technology once again exceeded the legal community’s expectations by filing a patent for its invention of Why is this an issue? Under patent law, it is the general expectation that inventors are humans, not robots.

(‘Device for the Autonomous Bootstrapping of Unified Sentience’), an artificial neural system, and claimed that DABUS was the sole inventor of the patentable invention. Currently, from its filings in the U.S., Europe, Australia, and South Africa, . The main question for patent offices is: within patent law?

A Flexible Australian Approach

The Federal Court in Australia found that no provision expressly excludes AI from the definition of “inventor”, nor does the actual term require a human author. Resultantly, the court confirmed that it will take a flexible approach, aligning with the ’s objective which reads:

“The object of this Act is to provide a patent system in Australia that promotes economic wellbeing through technological innovation and the transfer and dissemination of technology. In doing so, the patent system balances over time the interests of producers, owners, and users of technology and the public.”

Interestingly, the court also , emphasizing that only humans can be capable of ownership, but inventorship only requires the capacity to invent, which AI arguably possesses.

Patent Law in Canada

Contrary to other jurisdictions where “inventor” is legislatively defined, in Canada, the term “inventor” is mentioned but not defined within the Patent Act. For example, under “applicant” is defined as “... an inventor and the legal representatives of an applicant or inventor.” But, it does not define the term “inventor” or specify whether an inventor must be human.

When defining this term, experts refer to (“Apotex”). Here, the Supreme Court interpreted “inventor” to mean “the person or persons who conceived of” the invention. This approach favours a stricter interpretation and defines “inventor” as a human individual.

However, the purpose of Canada’s Patent Act aligns closely with Australia’s Patents Act, which is to . In this sense, Canada could take a more flexible approach and follow the lead of our friends from across the pond. It can be further argued that Apotex did not focus on the issue of defining the term “inventor”, and the Supreme Court never considered or debated the possibility of AI inventing patentable inventions in 2002. Thus, one may say that this case does not truly address this issue, nor does it lead us to a clear conclusion of how Canada may treat such a patent filing.

Potential Benefits

Granting patents to AI “inventors” , and would align with the objective of promoting innovation. DABUS is a , which means it can participate in machine learning, processing, and critically analysing data. With such capabilities, food containers would only be the start of a novel line of inventions. Restrictive legislation may deter future innovations from being patented in Canada, and hinder our technological advancements as a society.

Risks

Unfortunately, expanding this definition could also afford companies more inventive liability loopholes. A similar example is that caused automotive fatalities. In these cases, Tesla has argued that despite AI involvement in the driving of such cars, the human driver solely determines the vehicle’s actions, ��so AI technologies’ ease in collecting, storing, and analyzing data could also raise privacy concerns when looking at the inventive process more closely.

Additionally, there is no doubt that expanding this definition would confuse some areas of intellectual property law, and perhaps even other areas of law. It would take decades to adapt, interpret, and clarify what role AI will have on Canadian legislation and case law unless ��AI can someday predict this as well.

Whatever the decision is, AI seems like it is here to stay and will only continue to grow and advance. The only question left is whether Canada will warmly embrace this giant step of innovation, or stay back and observe.

The post Innovating the Term 'Inventor': AI and Patent Law appeared first on IPOsgoode.

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Junghi��Woo is an��IPilogue��Writer and a 3L��JD��Candidate at��Osgoode��Hall Law School.

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Privacy has been a reoccurring issue debated across the world as virtual communication is no longer seen as an option but essential to working remotely during a pandemic. The rapid spread of the COVID-19 pandemic may be said to have pushed society to forego privacy concerns for the quick, convenient ability to transition work to virtual platforms. Nowadays, work is almost impossible to achieve without the use of programs like Zoom and Microsoft Teams.

However, a year and a half since the lockdowns began, we may start to question if these platforms are safe to use. Many of us do not yet have the choice but as the world is, hopefully, starting to return to the office, we should strongly consider as we move forward whether our online data will ever be fully “protected”?

Zoom: The 2020 Icon of Remote Work

Zoom, an all-time favourite, recently agreed to pay over claims of violating users’ privacy rights through unconsented sharing of personal information with social media platforms including Facebook, LinkedIn, and Google. Further, instead of end-to-end encryption as they respresented. The difference between the two encryption protocols lies in Zoom’s access to the video and audio content of our meetings; the former allows such access, whereas the latter does not. Though Zoom denied these allegations, it through app updates and the “official” use of end-to-end encryption.

Access to our Zoom meetings may not present immediate concerns for our weekly virtual wine nights, but calls hosting confidential business and lawyer-client meetings may warrant alternative measures.

What about Other Platforms?

Microsoft Teams, another staple, has issues as well. While the platform introduced , such as end-to-end encryption, this past year, its user activity reports prompted many questions. In addition to , Microsoft Teams records your online activity—the . Perhaps more concerning is that your employer can as well.

Dangers of Unprotected Information

Other than the moral concern that our information is being collected, stored, and shared without our consent, our information may also be sold as commodities. Harvard Business School scholar Shoshana Zuboff calls this activity , where companies employ users’ internet browsing activities and data to create strategies that influence online consumer behaviour. Not only does this violate our privacy rights, but it also creates a bigger ethical dilemma within the economic market.

Why Now?

Zoom’s security changes were not proactive. In a sense, changes were made only after public backlash. One may question what else they are hiding or if they would have made such changes had this issue not been brought into the spotlight. Are there other data collection and usage activities we are not aware of?

The Pandemic Impact

Subtle or not, virtual platforms have always prompted privacy concerns. The difference now is that using these platforms is no longer an option—it is, in many cases, essential to earn a living, increasing human rights concerns. One may argue that employers are forcing employees to sacrifice their privacy rights as a condition to keep their jobs. Without these platforms, working from home can become quite inconvenient and inefficient, affecting their job performance and the company’s bottomline.

What Does the Future Hold?

Microsoft Teams provides a few options for users to opt out of providing some of their personal information. Virtual platforms continue to promise stronger security measures. However, is it even possible to assure complete protection of our privacy? Or must we accept and adapt to this world where our information is scattered and controlled by unknown entities in exchange for these seemingly essential services, that we often pay for?

Most of the world seems to post-pandemic, which means our usage and reliance on these online platforms will only continue to grow. The pressure for companies to change will either come from legislation or consumers.�� Without any pressure or change, we may just be headed towards George Orwell’s vision of 1984…in 2021.

Now, are you sure you want to unmute?

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Junghi��Woo is an��IPilogue��Writer and a 3L��JD��Candidate at��Osgoode��Hall Law School

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We’ve come a long way from the days of legally for their driver’s licenses to store in the provincial facial recognition data bank. Facial recognition technology, despite various controversies, has continued its presence in society. Its biggest client? Law enforcement.

Despite facial recognition technology’s , , and multiple class-action lawsuits in Britain and Australia, the U.S. start-up Clearview AI raised , showing that it is here to stay. Facial recognition technology is only going to get more precise- but at what cost?

How does it work?

While Facial Recognition may have various uses, the is that the software first accesses an internet database of photos and videos, then uses biometrics and algorithms to identify the same people in other photos and videos. Namely, law enforcement can use it to “identify” faces in surveillance software.

Privacy Concerns- Did I consent to this?

Most likely not. ��For example, Clearview AI collected billions of images from people on the internet without any clarification as to whether this was done lawfully or not. This led to Canada’s investigation on the RCMP’s use of Clearview AI, which resulted in the company halting its services in Canada. Four Privacy Commissioners have stated that Clearview AI has violated privacy laws in its methods of collecting data and using personal information for Clearview AI and was the privacy authorities’ recommendations. You are probably thinking back to all those Snapchats of your face, your selfie uploads, and your phone’s facial recognition unlock setting. I am too.

Biases in Facial Recognition Technology

Technology can’t be perfect. One of the main issues to consider is whom technology sets out to serve . Studies have demonstrated The found the algorithm’s performance was at its worst when encountering individuals with darker skin tones

Where does this become a serious problem? Ultimately, law enforcement claims to use this technology to “identify criminals”. What happens when law enforcement relies on this technology, despite its proven inaccuracies, when encountering members of racialized groups? Facial recognition technology is more likely to inaccurately match people’s faces if they were of a certain race. A is the NYPD’s use of facial recognition technology during the Black Lives Matter protests earlier this year.

Robert Julian-Borchak Williams from Michigan was the first person to be wrongfully convicted . Police, relying on surveillance video footage of a shoplifter, handcuffed Mr. Williams on his front lawn in front of his whole family. Mr. Williams was then driven to a detention center, got his mugshot, fingerprints, and DNA taken, and was held overnight, then interrogated the next day. All because of a faulty system that could not differentiate between two Black men.

Trade Secrets Implications

Taking this a step further, we look to another concern with facial recognition technology: the . In the U.S., forensic algorithm vendors (including those who sell facial recognition technology) have relied on to protect their intellectual property, hence, withholding relevant evidence at trial. To properly challenge the reliability of this technology, it is essential to understand how it works. Therefore, relying on intellectual property protections to prevent this does not achieve the true purpose of trade secret law – to incentivize businesses to

What does the Future Hold?

Governments in both the U.S. and Canada have started to realize the risks of using facial recognition technology and consider whether they are truly outweighed by its supposed “benefits”. Representative Mark Takano from California has recently introduced the Justice in Forensic Algorithms Act of 2021, which includes a prohibition on the use of trade secret privileges to withhold relevant evidence in criminal cases.

One may ask, what is facial recognition technology truly useful for? Are any of its uses significant enough to outweigh the serious dangers it poses? Without proper transparency, we cannot assure reliability. If essential information is only in the hands of vendors and law enforcement, what type of harmful power dynamic could this create in society?

The post Recognizing What’s Going On Beyond Your Face appeared first on IPOsgoode.

Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

On July 2, 2021, Russian President Vladimir Putin signed that redefined the world’s infamous bubbly drink. According to this change, only Russian-made Shampanskoye can use the prestigious “champagne” label in Russia. Non-Russian producers must now label their competing products as “sparkling wine” in Russia.��

This legislation contrasts (EU) to enforce geographical indication protection for wines and spirits. The term “champagne” was originally reserved for sparkling wine produced in the Champagne wine region of France. . Incidentally, they import cultural and economic value to such labels due to the quality or reputation attached to the geographical origin. For France, champagne is one of the most prestigious and expensive spirits in the market. Its objections were unsurprising, to say the least.

Despite its threats to suspend exports to Russia upon hearing of the news, Moët Hennessy, the world-famous champagne producer responsible for Veuve Clicquot, Ruinart, Mercier, Krug, and Dom Pérignon, retracted and announced that “

(WTO) that gives them a monopoly over the use of their brands. Franck Riester, France’s foreign trade minister, discussed the possibility of defending the interests of French champagne producers through legal action. European Commission spokeswoman Miriam Garcia Ferrer emphasized that the EU would support France in this endeavor to protect its rights.

, entitled “Geographical Indications”, and , which prohibits states from introducing special requirements that would “unjustifiably encumber” the use of affected trademarks, both may apply in this scenario. While trademark law protecting geographical indications is fairly straightforward, Article 20 caused a fair amount of political debate this past decade.

For example, in 2020, , prohibiting brand logos, designs, emblems, and slogans. This decision was upheld due to health concerns over the use of bright, flashy packaging to undermine health warnings and promote smoking. The WTO justified this decision as discouraging the consumption of a harmful and deadly product.

However, there appears to be no policy considerations for this legislative change as President Putin previously made similar decisions for Russia. For example, in 2014, to promote local products. In a way, this affects economic competition between products as now French champagne producers may not be able to realize the full value of their products. The label’s misunderstandings may also confuse future generations on the true origins of “champagne”, one of the primary concerns of trademark law. In contrast, geographical indications may arguably lead to a monopoly and deter users from purchasing the same product merely because it comes from different locations. While geographical indications are not perfect, their impact may simply be fact-dependent.

This future ultimately depends on if France or the EU files a complaint to the WTO. The outcome of this case would serve as a strong landmark ruling on the international significance of the history and cultural heritage of your everyday glass of … sparkling wine.

The post Redefining an Industry: Where is Champagne From? appeared first on IPOsgoode.

Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School

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On June 8^th, the Federal Court of Australia ruled that AGL Energy, Australia’s largest electricity generator, , an international environmental activist organization.�� The decision was an impressive win for Greenpeace as the Federal Court found that all but 3 of Greenpeace’s uses of AGL’s logo failed to amount to trademark and copyright infringement. Therefore, no damages were awarded to AGL.

One of the key uses of AGL’s trademark and copyright was Greenpeace’s tagline, “Australia’s Greatest Liability”. From 2019 to 2020, AGL produced of carbon dioxide equivalent emissions and operated Australia’s top two power stations in terms of greenhouse gas emissions.

An interesting reason for the Court’s judgement was that it found such uses amounted to parody and thus did not fall afoul of copyright laws, as it also added,

This case alone represented intellectual property (“IP”) law’s interesting relationship with freedom of expression, with a surprising decision in favour of the “little guys”.

Parody in Canada

The idea of using one’s logo or name to create parody does not solely create legal implications. As seen in the Greenpeace case, it can intersect with one’s freedom of expression, namely, to criticize. The balance between protecting the interests of IP owners and its “users” is a century-old struggle. ,

“The protection of authors, whether of inventions, works of art, or of literary compositions, is the object to be attained by all patent and copyright laws … On the other hand, care must always be taken not to allow them to be made instruments of oppression and extortion.”

Despite no specific legislation addressing the use of IP rights in parodies, the court has addressed the issue in prior cases using existing legislation. In copyright law, the defence of fair dealing can . In fact, this is found in where it states:

“Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

In trademark law, a trademark owner can invoke s. 22(1) of the Trade-marks Act to argue that such parody will be , after having to establish that their trademark was pursuant to s.4 of the same Act.

The likely Canadian outcome?

The same decision in favour of Greenpeace’s use of AGL’s trademark may be supported by [“Michelin”], where the court ruled that to successfully establish a s. 22 claim, In Michelin, former employees

In terms of copyrights, some uncertainty still exists as to how courts will address Greenpeace’s use as the court in Michelin emphasized that parody is not included in the defence of fair dealing, or even within the scope of criticism due to the intention of the copyright use being to However, it should be emphasized that Greenpeace’s position differs in that it posed true criticism of AGL’s non-environmentally friendly actions, which is beyond mere mockery.

Overall, I believe this Australian step may not lead to drastic changes in Canadian legislation, but I can safely say it is an important precedent for protecting freedom of expression and parody.

The post Parody Law: Greenpeace Tackles "Australia's Greatest Liability" appeared first on IPOsgoode.

Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

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The pandemic has not only confined many of us to our own homes, but has undoubtedly led many of us to rely on one main source of entertainment: the Internet. Gone are live shows, concerts, and plays. Live streaming of musical performances existed before the pandemic; now they are no longer a mere alternative, but the only option for viewers.

Although live streaming of E-sports and entertainment gaming were popular pre-covid, the sector within the first two months of the pandemic. This popularity increased revenue and attracted many questions regarding the risks that streamers face regarding their intellectual property. For example, it was estimated that yearly solely from his activity on

Infringing Background Music

While gaming streamers gain followers and viewers (and profits) based on their entertaining personalities, recently, their recorded content has been taken down due to In the U.S., copyright protection flows from the . depend on the rules created by any given platform and its existing licenses. Despite how society historically viewed online gaming, some gamers’ whole livelihoods undisputedly depend on playing video games and streaming it. With every takedown, users get a “copyright strike” from Twitch. After three strikes,

The Gameplay

According to Canadian copyright law, when a streamer live streams their gameplay, they are technically exercising their “performing in public” right pursuant to section 3 of the Copyright Act. The video game contains codes and text elements that would be considered literary works, and graphics that would be considered artistic works, both of which are copyright-protected subject matters. In live streaming their gameplay, the user would be communicating the graphics, text, and the audio of the game, all done without the copyright owner’s consent. Therefore, a case for copyright infringement could be established.

But Live Streams Still Exist?

There is no settled case law on issues of live streaming yet; however, gaming live streams may legally continue in one of two ways: as copyrightable work, or through the defence of fair dealing.

Though the actual video game has many copyrightable components, the user’s actual live stream may also be as a dramatic work. What the user says and how they play the game can be seen as original work. The streamer’s ideas are expressed through words and gameplay and the content itself is fixed in a video/audio recording format.

Alternatively. However, the streamers’ commercial benefit may prevent their use of the fair dealing exception.

Furthermore, game publishers purposely may not pursue action because of Such benefits would also depend on the type of game users play: story-based games may instead see economic losses caused by live-streamed spoilers.

What’s Next?

Although much of the action seems to be from our neighbours in the south, Canada is no different. Canada is home to many Twitch streamers and the community seems to be growing. If users and game publishers continue to “co-operate”, this issue may never be addressed at law in any country. Music publishers may feel differently, as users are starting to get fed up with constant takedowns following their use of copyright-protected music. Only time will tell whether legislative intervention is needed, but for now, all we can do is like, comment and subscribe.

The post Live Streaming: Playing the Game Right appeared first on IPOsgoode.

Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

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The 2021 Innovation Economy Council (“IEC”) Roundtable an exciting discussion around the commercialization of intellectual property in Canada. IP rights can be incredibly important to a business’ corporate strategy both during and after product development. Opening up a corporation’s IP can even be advantageous in fields such as quantum computing.

Several leading professionals provided their unique perspectives on the topic: Rhonda O’Keefe (VP, Intellectual Property & Contracts, NGEN), Darren Anderson (CEO, Vive Crop Protection), David Asgeirsson (Manager, Partnerships & IP, Xanadu), Domenic Di Mondo (VP, Technology & Business Development, GreenMantra Technologies), Mike Wessinger (CEO, PointClickCare), Krista Jones (VP, Momentum, MaRS), Frank Rudzicz (Director of AI, Surgical Safety Technology), and George Tsintzouras (CEO and co-founder, AlertLabs). The panel was hosted by Manjula Selvarajah (Journalist & Tech Columnist, CBC Radio).

Though many questions were raised, two in particular stuck out: 1) why are so many patents held by venture-capital-backed Canadian startups in foreign hands, and 2) is this concerning?

What Role Does IP Play In Corporations?

While many may assume that patents are the only and most effective way to protect a corporation’s IP, this may not hold true for every product. For example, although Di Mondo uses patent protection in his company GreenMantra Technologies, he also leverages trade secrets. Patent protection and trade secrets provide different types of protection, depending on the goal. When applying for a patent, Di Mondo recommends asking why and determining how to maximize the value of such protection. Companies must consider the substantial time and money required to obtain a patent, and if it fits within their business strategy. Alternatively, protecting IP with trade secrets requires a plan on how the trade secrets will be effectively protected. This involves deciding how to collect and store the data, determining who has access to company trade secrets, and drafting confidentiality agreements.

For some industries, patents are essential. As Anderson emphasized, since patents are more IP-focused and highly regulated, most of the value and growth of his company Vive Crop Protection is derived from its patent portfolio.

On the other hand, technology industries, such as software providers, barely touch on patent registration. Wessinger explained that a company would have to spend too much money and time in patent registration to be worth it. The technology industry, especially software, moves too rapidly for patent protection to be effective. Barrie McKenna, author of the IEC reports, added that companies do not patent because their products are not so different than others in the marketplace, or they cannot be bothered by the timely expense when the secret to their success is their customers. In contrast, Wessigner’s company, PointClickCare, mostly focuses on copyright and trade secrets and so it invests most of its time and resources into Research and Development to stay ahead of the competition.

Small and medium-sized enterprises (“SME”) may not be aware of their IP rights and the steps they can take to protect them. A recent report to the Government of Ontario by the Expert Panel on Intellectual Property

The Current Situation

Since 2017, According to the 2021 IEC Report,

Why Are Foreign Hands So Full?

The IEC report found that the lack of Canadian patent ownership is . Financing is incredibly important for startups to scale up and commercialize their innovation, and if they cannot find sufficient support in Canada, they must look elsewhere. This is one of the many reasons why Canada has become a source, but not a destination, for innovation.

As shown through the many takeovers happening in Canada, talent is clearly not an issue. What is missing are the anchor companies and investors that would support Canadian SMEs to their later-stage growth.

Should we be Concerned About Increasing Foreign Ownership?

��Jones commented that to realize the economic benefits of Canadian innovations and protect the innovative work developed within Canada’s innovation ecosystem, national ownership may be essential in certain instances. To encourage national ownership, companies need the ability to remain headquartered in Canada with the support of Canadian acquirers.

On the other hand, while Tsintzouras’s Alert Labs has U.S. ownership, he still keeps his operations based in Canada. “We remained a Canadian company, we remain here, we still employ people here, we still grow, but we looked at what the best chance for our technology to make it to market and grow in scale,” commented Tsintzouras. He also highlighted a major aspect that is often overlooked when examining foreign takeovers: the company’s access to the U.S. owner’s network. The connections that the U.S. owners provided Alert Labs significantly contributed to its ability to enter certain markets and capitalize on certain opportunities. Rudzicz agreed and claimed that foreign ownership would not be a problem if the people and data stayed in Canada post-takeover.

So, What’s the Answer?

To take advantage of developing Canadian IP, we need to support IP commercialization, not or patent sales to prevent foreigners from acquiring Canadian IP. ��

In achieving this goal, Canadian policymakers play an important role. Their in encouraging Canadian buyers, such as tax breaks and grants, have proven successful. However, the current numbers show that we need more sustained support for our scaling companies. ����

Overall, further supporting national IP commercialization instead of penalizing foreign takeovers seems to be the answer. Or perhaps Canada can take Alert Labs’s approach and encourage foreign takeovers but put policies in place to encourage growth and development within Canada. Whatever the approach is, we must act quickly as these takeovers will only increase Canada’s ever-growing opportunity costs.

The post Summarizing the 2021 Innovation Economy Council Roundtable appeared first on IPOsgoode.

Junghi��Woo is an��IPilogue��Writer and a 3L��JD��Candidate at��Osgoode��Hall Law School.��

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Since the pandemic began, there has been much debate about whether countries should temporarily waive vaccine makers’ intellectual property (“IP”) rights to improve access to COVID-19 vaccines around the world. While U.S. President Joe Biden recently asked to waive the patents on U.S. manufactured vaccines and with the world, our This decision reignites the debate about ongoing questions in the pharmaceutical patents space: how and when should we balance the public’s interests with those of patent owners? Specifically, are we going to justify denying medicine to millions of people in order to protect patent owners’ economic interests? Should patent law even consider or prioritize human rights?

The are all purposed in making the global patent system “coherent and balanced”, “provide legal certainty”, “promote high-quality patents” and “support economic growth”. None of the stated goals consider human rights. However, what happens when people are dying because they cannot access vital therapeutics?

In 1996, about could not access antiviral therapy for HIV/AIDS due to the creation of this very global patent system the prior year. Years of lawsuits finally made the antiviral therapy more affordable for those who needed it, but these changes could not revive the many lives that were lost to AIDS in the previous years.

The COVID pandemic affects more people than HIV did in 1996. Unlike vaccine distributions, the virus is worldwide and does not discriminate. In 2021, poverty and capitalism have determined the fate of millions. India is a prime example of the catastrophic impacts of vaccine monopolies and the urgency of the issue.

Patent law aims to incentivize detailed disclosure in exchange for a monopoly, with the invention becoming public domain 20 years after the filing date. However, in the context of COVID-19, how beneficial would this information be in 20 years? What about the millions that are dying every day?

Some argue that . IP rights are the reason why many pharmaceutical companies invested resources in research and production. Therefore, depriving them of their IP right after the fact would be inherently “unfair”. To address the issue of vaccine inequities, some have suggested encouraging pharma companies to reduce vaccine prices for the developing world. However, one may ask how effective that will be in India, where many are

Countries must look at this pandemic as a problem that cannot be solved by vaccinating only a few, notably “richer” countries around the world. As Trudeau said himself, As criticisms that the Government prioritizes profits over human lives prevail within this debate, one can argue that the Prime Minister’s actions do not match his previous statements. It is fair to question whether this pandemic will force the world to reconsider patent laws and consider human rights while enforcing the laws.

The post Intellectual Property Rights vs. The Pandemic: An Update appeared first on IPOsgoode.

Junghi��Woo is an��IPilogue��Writer and a 3L��JD��Candidate at��Osgoode��Hall Law School.��

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While not very prominent in Canada, the international auto racing sport Formula 1 (“F1”) is currently worth over . Despite its enormous market value, F1 is self-regulated by the��International Automobile��Federation (the “FIA”). Aside from the drivers, the cars themselves are quite fascinating; every team spends to secure the best engineers and staff and the highest quality materials and parts to create the fastest cars that score the most points. These points then that is awarded to the teams.

There is a major question of the intellectual property rights in each car. Normally, patent law would regulate the structure and engineering of the cars. However, due to the self-regulated, rapid-paced nature of F1, teams primarily use trade secrets to protect the internal design of their cars. Lengthy patent registration processes simply cannot keep up with annual F1 seasons.

Racing Point: Questioning the Sufficiency of Current Intellectual Property Rights Protection

During the 2020 season, controversy surrounded one F1 team, Racing Point, that put forward a car model that was . The cars were so similar that the FIA declared a breach of the rules, issuing Racing Point . This penalty occurred against the backdrop of a that affected Racing Point’s use of Mercedes brake duct designs which .

As per the F1 rulebook, the teams must design car parts categorized as “” for themselves, rather than buy them from another team or company. Brake ducts were not on this list in 2019 when Mercedes supplied Racing Point with designs which Racing Point used to create their front brake ducts. In 2020, the FIA categorized brake ducts as listed parts. The problem was that Racing Point used Mercedes’ design for rear brake ducts in 2020, rather than implementing them in their 2019 car when FIA still permitted them to do so. Since the rear brake ducts are now categorized as “Listed Parts” , Racing Point violated the rules by using the Mercedes-Benz design.

At the outset, the monetary fine may seem to sufficiently penalize Racing Point. However, the potential points it “stole” through this violation can be worth much more than a simple fine, considering the prize money and publicity these points bring every year. For example, in 2020, Mercedes earned . This excludes the millions of dollars teams would attract from investors and sponsors for the next season based on their previous season’s ranking. Ultimately, despite the immense value of intellectual property rights in F1, there appears to be insufficient protection to deter teams from infringing them.

FIA’s True Priorities?

Trade secrets can be effective in certain circumstances, but they afford less protection than patents because they cannot be enforced if leaked. Given the comparative unenforceability, should patent law be updated to cater to such industries? The commercialization of F1 exemplifies the enormous amount of money at risk, and the Racing Point incident shows the financial risks created by the lack of intellectual property protection for each car.��

However, the flexibility of FIA rules may not be accidental; the market is driven by its entertainment value, through live streams, YouTube, and recently Netflix. Strict patent rules would essentially allow a team to which could potentially eliminate competition between the teams, resulting in a “boring” season. In fact, the FIA ruled that patented car technology is illegal to use in F1 to

FIA’s priorities appear to differ from those of the law. One may even question, for practical purposes, whether the focus should even be on the law. Patent law incentivizes innovators by protecting their creations, and upon a patent’s expiry, the designs of these inventions fall under the public domain to encourage further innovation. However, outside F1, does society truly benefit from receiving patentable knowledge of racecar technology? Would the disclosure of racecar designs encourage innovation and thus justify granting patent protection?

Overall, this relaxation on patent law can be said to contribute to F1’s volatile nature. Truthfully, this same volatility keeps me watching F1 to this day.

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