Dan Breznitz is the Munk Chair of Innovation Studies and co-director of the Innovation Policy Lab at the Munk School of Global Affairs, University of Toronto. Mark Fox is a University of Toronto distinguished professor of Urban Systems Engineering and fellow, American Association for Artificial Intelligence
At long last our government is realizing the crucial importance of intellectual property (IP) to national economic well-being. We are now tasked with devising a national IP strategy, while at the same time being under heavy pressure from the U.S. to adhere to its own narrow vision under the pretext of NAFTA (re)negotiation. Therefore, it is important that, as Canada devises its first-ever national IP strategy and prepares to negotiate NAFTA, we carefully analyze our national goals and current situation, so we can strategically play to our strengths while simultaneously trying improve our current dismal position.
Canada desperately needs to become an innovation-based economy. Presently we have very few companies that compete globally based on their own innovation, and we generate (and own) very little IP. Even in strategic areas, such as Artificial Intelligence, where Canada has been pioneering the research for over two decades, most of the patents, and with them the profits, revenues and monopoly rights, belong to foreign companies.
To be blunt, Canadians operate in a world where the deck of cards is already dealt and our competitors have all the aces. Nonetheless, if we want to ensure our continuous prosperity and way of life, we must create and scale-up companies, while vigorously defending their freedom to operate in order to grow. Worse, many times it is our very own brilliant, publicly funded research that is the fundamental basis on which these patents were issued. Under such conditions we need to ensure three things: First, not only that we start to generate and own more patents, but also that these patents are of very high quality, preferably improving the quality of the global patent system on the way. Second, we need a few "jokers" in our deck – weapons that can stop the other side from using their patents to stifle Canadian firms' freedom of operation. Last, but not least, we need to educate Canadians to become the savviest users of intellectual property rights' (IPR) strategy.
It is here that our unique strengths make our temporary weakness into an asset. But only if we realize the importance of prior art. Prior art is a legal term that means any evidence that an invention is not your original work but is based on already publicly known work. In theory, patents should be granted for original inventions, and hence, part of the process of patent validation is checking for prior art. That is whether anyone, anywhere, at any given point of time, has already made this invention. Further, a patent can be declared invalid if it could be shown that prior art existed and was not weighted properly by the patent examiners.
Indeed, part of the problem with the current patent system is that two decades ago the United States Patent and Trademark Office started to issue significant numbers of low-quality patents, without properly checking for prior art and granting those patents vast general application. This has so significantly stifled innovation that both the USPTO and the U.S. Supreme Court started to intervene in the hope of fixing this problem. One area in which the USPTO has opened up more opportunities for third-party intervention is in offering information about existing prior art. Indeed, during NAFTA negotiations, the Canadian and Mexican representatives should push for the USPTO 2012 initiative to facilitate more third-party submissions of prior art, aimed at ensuring that only high-quality original inventions are awarded a patent. Canada should fully support this initiative.
In the last 40 years, Canada has been acting as the open-source laboratory of the world – we funded and conducted the research, that is the prior art – and foreigners gladly patented it, gaining the property rights and profits. Nowhere is this disturbing phenomena clearer then in Artificial Intelligence. It is high time that Canada defend the openness of our open science and, at the same time, achieve all three of our national IP strategy goals: 1) generate and own more, and higher quality, patents; 2) defend and expand the freedom to operate for current and future Canadian entrepreneurs and companies; 3) educate Canadians to become the world's savviest users and producers of IPR.
We propose doing that by starting a national crowdsourcing prior-art initiative as part of NAFTA talks. This initiative will recruit and train student-volunteers from all disciplines in the rough and tumble world of IPR, and specifically in the skills of doing thorough prior-art checks. These highly motivated and trained students will be mobilized to crowdsource the world's most complete prior-art research when a Canadian company is being attacked on patent infringement with the aim of invalidating the patent, when patents are filled in the USPTO in strategic areas to Canada (AI, quantum computing and new drugs being three obvious examples), and as part of the international patent-filing activities of Canadian firms in order ensure that our patents are known to be of the highest quality possible.
By so doing, the prior-art initiative will create significant deterrence against predatory behaviour of patent holders toward Canadian entrepreneurs and companies, ensure that Canadian research, technology and innovation are fully and openly embedded in patents in areas that pertain to our strategic objectives, and educate generations of Canadian students in the highly applied skills of obtaining and retaining IPR. Further, the prior-art initiative also opens a new area of the innovation economy in which Canada can become a global leader. Last, but certainly not least, this initiative will improve the quality of the patent system overall, an essential global public good, something that we always strive to supply. Our window of opportunity is short, the risks and rewards very high. We must act decisively using our biggest competitive advantage: Canadian brains.