CIPO has recognized Canada’s “very close economic links to a large neighbor, the United States”[4] and “Canada’s close integration into the global economy”[5], as the two reasons why Canada’s resident application share is lower than most other leading economies. If CIPO is correct, then the current NAFTA negotiations could have a great impact on the patent filing trends in Canada.

NAFTA’s Impact on Canada’s Economy

Since NAFTA came into effect in 1994, the economy of North America has more than doubled in size and Canada-US trade has nearly tripled.[6] Canada is the number one trade partner for more than half of the states in the USA and the second trade partner for the majority of the remaining states.[7]

Therefore, if NAFTA dies, it is very likely that many close economic links between US and Canada will break down. Dissolution of such economic links between the two countries may result in loss of incentives for potential American patent filers to file for patents in Canada. Since the US is the top patent filer in Canada this loss is very concerning. A drop in the number of patents filed by US residents will, considerably, decrease the total number of patent filings in Canada.

Canada as a Gateway to the US Market

Additionally, as a result of NAFTA, Canada is also perceived as a gateway to the US market. A report, prepared by the Government of Canada, which is targeted towards foreign
investors, states that “In North America, Canada enjoys direct access to the NAFTA market, so foreign investors can reach a single market of 480 million consumers, with a combined GDP of over US$20 trillion. Many Canadian production hubs are located closer to US markets than are American production sites.”[8]

If the links that NAFTA has created between the Canadian and American markets are eliminated, there is a chance that other foreign countries such as Germany, Japan, France and Switzerland, that are among the top patent filers in Canada, will have little to no incentive to file for patents in Canada.

Is NAFTA Canada’s Achilles’ Heel?

Killing NAFTA will cut many of the economic channels between Canada and the USA and this may cause hesitancy in foreign patent filers to file for patents in Canada. Since��foreign patent filings account for more than 68% of the total patent filings in Canada [9], such a drop could have dramatic impacts on the total number of patent filings in Canada.

Assuming that the number of patent filings correlates directly with the rate of innovation in a country [10], then a decrease in the former may result in a decrease in the latter. It has been shown that the rate of innovation affects the growth rate of output in manufacturing.[11] The number of patent filings and the GDP from manufacturing in Canada has seen a net increase since 1995, around the time NAFTA came into effect.[12] Therefore, a drop in the number of patent filings could affect the country’s manufacturing industry and the GDP from manufacturing.

Although it has been said that if NAFTA dies, it won’t be the “end of the world” for Canada [13], Canada needs to start thinking about other ways to balance the effects of a possible dissolution or modification of NAFTA. In order to do so, among other things, Canada needs to find ways to attract foreign investors and patent filers and encourage innovation from within.

Being overly-dependent on foreign markets and economies is a risky business, specially in the current unstable political atmosphere.

Nazli Jelveh��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.

[1] Canadian Intellectual Property Office, “IP Canada Report 2016” (25 November 2016), Government of Canada (website), online: <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr04112.html>.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6]�� NAFTANOW (website), online: <http://www.naftanow.org/results/default_en.asp>.

[7] Judi Bottoni, “NAFTA, Trump and Canada: A guide to the trade file and what it could mean for you” (24 January 2017), The Globe and Mail.

[8] The Canadian Trade Commissioner Service, “Invest in Canada Flagship Report” (2016), Government of Canada (website), online:<http://www.international.gc.ca/investors-investisseurs/assets/pdfs/download/1-Flagship_report.pdf> at 24.

[9] Supra note 1.

[10] for more on this, please visit http://www.wipo.int/patent-law/en/developments/research.html.

[11] Hulya Ulku, “R&D, Innovation, and Growth: Evidence from Four Manufacturing Sectors in OECD Countries” (2005) Institute for Development Policy and Management at University of Manchester Working Paper No. 12, online:<http://ageconsearch.umn.edu/bitstream/30542/1/de050012.pdf>.

[12] Supra note 1, figure 4.

[13] Alexander Panetta, “Canada’s original NAFTA negotiator say it’s not ‘end of world’ if deal dies” (18 October 2017), CTV NEWS (website),
online:<http://www.ctvnews.ca/politics/canada-s-original-nafta-negotiator-say-it-s-not-end-of-world-if-deal-dies-1.3638387> and please see Jesse Ferreras, “What if NAFTA ended? These would be Canada’s hardest-hit provinces, industries” (18 October 2017), Global News (website), online.

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Due to the international and extra-jurisdictional aspects of enforcing and administrating patent law in general, and similarities between Canadian and European patent regimes, the concerns and issues raised in her are relevant in Canada and could trigger similar discussions regarding the Canadian patent system.

Patent law and Language

Is there anything inherent in patent law that makes it more susceptible to ambiguities than other fields of law? Dr. Thambisetty posits that patent law works as an intermediary between law and other fields of knowledge, such as science and commerce, which have their own dialects and languages. One can think of patent law as an interdisciplinary field, whose dialect is the common denominator of many mutually exclusive technical languages. This interaction leads to the creation of non-standard terms in patent law. Further, due to this unique position of patent law, the scale of non-standard terms that are used in this field is considerably larger than any other field of law.

Guidelines on Writing Patent Applications and Expectations��

The are written by one branch of the (“EPO”) to aid the EPO in its examining role. Guidelines are often used and quoted in the EPO’s . But they are not considered to be law and therefore are not binding. The EPO follows the guidelines in its decisions, however, it can also refrain from following them, on the basis that guidelines do not constitute law.

While the guidelines are not legally binding, patent applicants are expected to follow them in drafting their applications, and as a consequence, there is an expectation imposed on the applicant by the EPO.�� How does the EPO justify this inspirational role of its non-binding guidelines? According to Dr. Thambisetty, the EPO's institutional power over the��administration of patent law enables them to evade justifying their decisions.

Purpose of Ambiguity: Illusion of Legitimacy

One important role that ambiguity plays is that it adds to the legitimacy of the institution. Dr. Thambisetty argues that ambiguity is like an "endowment" to the office to give it legitimacy. The EPO, by exercising their power over rhetoric and language of the legislation, has kept the provisions ambiguous to give the appearance that special knowledge and expertise is required when dealing with the legislation.�� According to Dr. Thambisetty, this appearance serves two important and intertwined purposes which when combined, gives the institution the illusion of legitimacy.

First, it gives the EPO authority to exercise a relatively unlimited power over applicants and agents. This provides a possible answer as to why the EPO can impose expectations and not abide by them itself.

Second, it solidifies the EPO's position amongst other governmental institutions.��No other governmental institution can compete with the EPO, as they lack sufficient expertise and knowledge when dealing with patent legislation.��Therefore the EPO faces no competition in the regulatory sphere.

Dr. Thambisetty concluded her talk by emphasizing that an institution, which navigates ambiguity, can exercise a great deal of power over those who come within its jurisdiction. As long as this power can be enforced and harnessed, that institution��has an incentive to continue its ways. In her opinion the change has to come from inside the institution.�� So the question is, how much ambiguity are we willing to accept?

Nazli Jelveh is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Internet has changed the way information is communicated and these changes affect individuals’ right to privacy. Current privacy and personal information protection legislations, namely, Section 8 of the Charter, Privacy Act and Personal Information Protection and Electronic Documents Act along with its provincial variations, regulate gathering, use and disposal of personal information of individuals. Common law, also, provides complainants with cause of action in defamation, libel, misappropriation of personality and intrusion upon seclusion. However, in today’s digital age, these existing frameworks do not sufficiently address the issues and concerns of those who use Internet on a daily basis. The widespread use of the Internet and the consequential importance of online reputation, make it a necessity to either look for alternative ways to protect online privacy or improve the existing frameworks.

The right to be forgotten enables individuals to ask for their personal information to be removed from the Internet. This alternative solution has been at work in Europe, and if adopted in Canada, it would widen the scope of the current privacy frameworks. However, the differences between the structure of Canadian jurisprudence and European jurisprudence might impede the adoption of the right to be forgotten in Canada.

Legislations that embody the right to be forgotten, give individuals a right to demand erasure of their information. Arguably, then, these legislations have the potential to be suppressive towards freedom of expression and consequently, s.2(b) rights.

In the case that these legislations are found to be offensive to freedom of expression rights, section 1 of the Charter might be invokes to see whether or not they can be regarded as reasonable limits on rights and freedoms. However, since there are other ways to achieve the same goal as these legislations such as anonymizing published information, employing reputation systems, using expiration dates for personally identifiable data, contextualization and cognitive adjustments, the s.1 analysis might fail on the minimal impairment test.[2]

Further, public policy arguments in favour of adopting the right to be forgotten mostly focus on the rights and freedoms of one party and ignore the competing rights and freedoms of the other party to the dispute or the interest of society at large. Protecting privacy interests of individuals, societal reintegration, ability to redefine oneself and safeguarding one’s autonomy are amongst the reasons proposed for adopting the right to be forgotten.

Arguments against adopting the right to be forgotten focus on this exact shortcoming. These arguments hold that the right to be forgotten should not be adopted because in balancing individuals’ right to privacy against societal good, the latter should be upheld.

Discussion around right to be forgotten involve one prevalent question: Why should an individual have the right to decide what is relevant or irrelevant for other individuals to know or remember? And the answer would be: it depends of the circumstances. For example, in a case of revenge porn, there are strong public interest reasons that justify giving an individual, the complainant, the right to demand removal of such content.[3] However, it is more difficult to see why complainants should be given the same right in cases where, for instance, they have been given a bad online review because of the services they have provided.

Adoption of the right to be forgotten in Canada will be a radical departure from precedent. If the purpose of the right to be forgotten is to safeguard individual’s right to privacy on the Internet, then the right to be forgotten is unnecessary. This is because, as it was discussed, there are other ways to reach the same objective, which are less offensive to competing rights and freedoms.

��Nazli�� Jelveh is a JD Candidate at Osgoode Hall Law School.

[1] George Bemis professor of international law at Harvard Law school, professor of Computer Science at Harvard School of Engineering and Applied Sciences and Co-Founder, Director, and Faculty Chair, Berkman Center for Internet & Society.

[2] Michael L. Rustad & Sanna Kulevska, “Reconceptualization of The Right to Be Forgotten to Enable Transatlantic Data Flow” (2015) 28:2 Harvard J of L & Technology 349 at 382-385.

[3] Gabrille Giroday, “Ontario court expands scope of privacy tort to include ‘revenge porn’” (1 February 2016), Legal Feeds (blog), online: < http://www.canadianlawyermag.com/legalfeeds/3104/ontario-court-expands-scope-of-privacy-tort-to-include-revenge- porn.html>.

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