On May 9, The Globe and Mail published Canadians Can Innovate, But We're Not Equipped To Win by former Research In Motion co-CEO Jim Balsillie. This is part of a series responding to and expanding on that essay.
Intellectual property is big business on a global scale. In fact, IP rights are becoming the global currency of the international knowledge economy. Although Canadians are very good at generating ideas, we struggle to bring these ideas to market on a globally competitive basis. Some of our difficulties arise from the fact that sophisticated legal advice is not getting to the right people at the right time in the cycle of innovation.
While there is a pervasive assumption that IP legal services are already being provided to startups in a comprehensive and cost-effective way, nothing could be farther from the truth. IP legal advice is expensive and the limited numbers of IP legal experts are concentrated in the major Canadian centres. If we are serious about enhancing our commercialization ecosystems across the country, we need to fill the existing gaps in the availability of affordable IP legal services.
As such, the legal profession and various levels of government should address this issue in a systematic way by supporting the establishment of well-funded, professionally supported and supervised law school IP clinics.
Greater access to IP legal services through IP clinics can help address a very real structural weakness in our commercialization infrastructure. IP clinics can provide free transactional services to startups because they would be run by fully supervised law students as part of their legal education. These clinics would therefore serve the needs of the startup community while also providing invaluable skills training to future IP lawyers. Further, IP clinics would offer startup clients independent advice free from the business constraints of private practice that continue to rely on billable-hour fee structures that have been shown to encourage inefficiencies.
Both the United States and Europe have recognized the significant role that law school IP clinics can play in supporting the commercialization of innovations. For example, the United States Patent and Trademark Office (USPTO) oversees a Law School Clinic Certification Program, through which participating law schools provide free patent and trademark transactional services to eligible startups. A network of IP law clinics is also being established in the European Union with the same objective of providing free legal support to the European startup community.
We must implement similar measures here. The establishment of IP clinics should be actively encouraged and they should be "networked" to ensure coverage throughout the country. To date, postsecondary funding constraints have made it extremely difficult, if not impossible, for law schools to establish and sustain these clinics. Given the priority being placed on innovation and commercialization by the various levels of government in this country, it is imperative that funding be made available for the creation and long-term viability of IP clinics at Canadian law schools.
Also, more work must be done at the policy level. The various law societies that regulate the legal profession should review their rules regarding clinical legal education with a view to encouraging this kind of initiative.
However, capacity-building in IP legal services cannot rest on these clinics alone. IP clinics and, indeed, the entire startup ecosystem would need support from legal practitioners with expertise in IP law and IP commercialization strategy. Canadian IP practitioners should be encouraged to undertake some IP legal work on a pro bono basis whether through the IP clinics themselves or independently. Although IP hasn't traditionally been a practice area for pro bono services, it is time for IP legal practitioners to revisit this.
Having pro bono IP legal services available for commercialization activities is something that is already occurring in the United States. The USPTO has initiated a Nationwide Pro Bono Program with the mandate to ensure that "no good invention is left undiscovered due to the financial inability to secure the services of a registered patent professional." This program provides free legal representation to inventors or small businesses that have limited resources.
Canadian legal IP practitioners should implement a similar pro bono program for Canadian startups, whether on their own or through the agency of the Canadian Intellectual Property Office, the Canadian equivalent of the USPTO. Similar to the U.S. program, the services provided would have to involve one-on-one transactional work.
While it would be hoped that lawyers would see the advantage of providing such services (which include fostering changes in public reputation of the profession, exposing lawyers to potential future paying clients and providing personal satisfaction), law societies could further encourage this behaviour. For example, all lawyers in Canada are required to undertake a minimum number of professional development hours per year. Perhaps those IP lawyers who provide such pro bono services could claim credits towards this annual professional requirement.
IP clinics, operating in tandem with the pro bono support of IP practitioners, would be an effective and meaningful way to deliver the much-needed IP legal services to the underserved startup community. These are measures that are not very difficult to implement, and yet the benefits to our overall economic well-being would be immense.
We cannot afford to remain complacent – capacity-building in Canada's IP knowledge infrastructure is truly a matter of global consequence for this country and its prosperity.
Myra Tawfik is professor of law at the University of Windsor and senior fellow at the Centre for International Governance Innovation. James Hinton is an associate at Bereskin & Parr LLP.