Coffee makers, parking meters, a thing for your socks
EXPERTS CALL FOR REVIEW OF DECADE-OLD CLEANTECH PATENTS PROGRAM
Acoffee maker. An ice pack. A display case. Brackets for mounting lanterns. A tool sharpener. And a device to keep your socks from falling down.
These may sound like the contents of the clearance bin at Canadian Tire, but this oddball collection of items represents some of the 469 patents granted under the Canadian Intellectual Property Office’s Green Technologies Program, a 10-year-old initiative to expedite the approval of technologies whose commercialization would be good for the environment.
The inclusion of such inventions raises questions about the definition of cleantech, and whether CIPO officials should be trying harder to discern between green and greenwashing. But experts say the more urgent question is why so few Canadian inventors are using the program, when the barrier to entry is low enough that an ice resurfacer, a parking meter and a firehose qualify.
“You’ve wandered into a very interesting public policy question, which is a strategic innovation question,” said Jim Balsillie, former co-chief executive of Blackberry, who has since become a leading advocate for a national intellectual property strategy. “Where does CIPO fit in the game that we’re playing for global IP? These kinds of programs, they’re not bad. But are they the true antidote that we need?”
The idea behind the Green Program was to help Canadian cleantech inventors catch up with their global peers. The U.S., the U.K., Australia and South Korea all had expedited cleantech patent programs before Canada did, allowing them to bring products to market faster.
Canada’s program reduces the wait time for the examination of qualifying applications, with about 95 per cent of applications being successful, often getting an examiner’s report in two to four weeks, according to an analysis by Bereskin & Parr lawyers Isi Caulder and Justin Philpott. In a feature that’s unique in the world, there are no fees, compared with a US$2,000 to US$4,000 charge to request prioritized examination in the U.S.
To qualify, applicants must make the argument that the commercialization of their technologies would mitigate environmental impacts or help with environmental conservation, and Caulder said CIPO tends not to scrutinize those declarations closely.
“They say, very specifically, that they are not going to question the declaration,” Caulder said. “They essentially step back and say, ‘If you provide a declaration — you say you’re in the bucket — we’re going to let that happen.’”
In a statement, Innovation, Science and Economic Development Canada spokesperson Hans Parmar said examiners apply the same diligence to patents filed under the Green Program as they do to any other application. “It is … not ‘easier’ to obtain a patent under this mechanism, rather it is only the conclusion, grant or rejection, that is achieved faster,” Parmar said.
Uptake of the program is similar to other acceleration mechanisms offered by CIPO, he said.
What should count as a “green technology?” Caulder argued that just about any new invention falls under CIPO’S definition, since it wouldn’t be a technological innovation if it wasn’t more efficient than how we were doing things before. “It’s surprising that more aren’t falling into the bucket,” she said.
Chris Wormald, a cofounder of the Innovation Asset Collective, a patent-collective program that helps Canadian small- and medium-sized cleantech companies leverage their intellectual property, invoked a well-worn saying about pornography, which he said also applies to cleantech: it’s hard to define, but you know it when you see it. “There’s stuff that’s clearly cleantech; there’s stuff that’s clearly not. There’s stuff that, frankly, sounds clean, and actually isn’t,” he said.
Wormald said the obvious beneficiaries of this program — Canadian cleantech companies — aren’t filing as many patents as they should be. Wormald himself had never heard of it, which suggests it’s likely suffering from a marketing and awareness problem among the businesses it’s designed to help.
“These programs aren’t going to (Canadian cleantech companies) and saying, ‘Hey, we want to help you file more.’ They’re just sort of come one, come all,” he said. (Parmar, the ISED spokesperson, said CIPO promotes the program online, through its network of partners and by participating in tech events and conferences).
Caulder said one reason her clients aren’t making more use of the program is that in many cases, it’s actually in their best interest to slow the process down. She said filers often want to wait and see what happens to their patent claims in the bigger U.S. and European markets before proceeding in Canada, since CIPO makes it harder to add new claims to a patent once it’s been approved.
“Rushing through with the Green Program, you might end up with a crystallized Canadian patent, and you can’t change it very easily,” Caulder said. “Meanwhile, other things are happening in the U.S. and Europe.”
Natalie Raffoul, managing partner of Ottawa-based law firm Brion Raffoul and an expert on technology patenting, said it’s time for a review of the decade-old program.
“Perhaps it’s time now after almost a decade of this program to look and see, who’s using it? What is it achieving? Is it effective?” Raffoul said. “Focusing on accelerating patent applications is nice. But if you’re not filing any, what are you accelerating?”
As for the question of whether patents such as a device for keeping mice out of the tires of parked cars should be allowed to cut to the front of the line as “green” inventions, Balsillie said it’s hard to say. He said they may well have some legitimate claim to environmentalism, such as being made out of recyclable materials.
Maybe not all of them, though.
“I’ve got to say, a device to keep your socks from falling down?” Balsillie said. “You got me there.”