Going Global: How Canadian Companies View Intellectual Property

Posted on June 15, 2011

by John P. Beardwood and Mark D. Penner of Fasken Martineau DuMoulin LLP

Introduction

Recognizing, protecting and exploiting Intellectual Property ("IP") assets has never been more important to businesses. While capturing the benefits of innovation can make the difference between profitability and demise, there are numerous and competing priorities on companies' time, money, and attention that make doing so a challenge.

In order to assist our clients more efficiently and effectively manage their IP within this competitive and challenging marketplace, Fasken Martineau conducted a survey of a number of Canadian companies as to how these companies view the importance, value and role of IP in their business. The following analysis of the results of our survey will help our clients secure more effective IP protection, more effectively manage the IP development process and reduce the risk posed by third party IP.

Respondents View IP As Driving Their Business Model

A majority of our 2009 survey respondents know and understand that IP is important to their business. Almost 80% of respondents consider IP to be a key or top priority, while only 6% consider IP to be a low priority.

Our survey respondents also have a clear, and remarkably uniform, view of the role that IP plays within their organizations. Two thirds of the respondents surveyed reported that IP plays a significant role in generating revenue for their company (for example, through licensing).

A majority of respondents also indicated that IP "distinguishes" their company in the marketplace (60%) and "creates barriers for competitors" (56%).

The fact that 62% of the respondents indicated that one of the key roles of IP within the business was to "increase the company's valuation" suggests that most respondents understand the value of IP as an asset. Further, 44% of respondents considered that one role of IP was to "attract investment."

 Global IP Outlook: Looking beyond Canada to Secure IP Protection

IP protection in countries other than Canada is clearly important for the Canadian companies surveyed, as two thirds of the respondents report that they sell products or make their services available outside Canada. Of those respondents that do sell products or offer services outside of Canada, 69% indicated that they have sought IP protection outside of Canada. The overwhelming majority (91%) of the respondents who sought protection outside of Canada indicated they had sought to protect their IP rights within the United States. However, other jurisdictions appear to also be key, including Europe (73%), the United Kingdom (55%), Japan (50%), India (36%) and China (32%). This not only reflects the growing role that these countries are playing within an ever increasing global market, but – in the case of India and China - may also reflect a perception that IP protection in these jurisdictions is becoming more effective, such that it justifies companies making the effort to obtain such protection.

Read and download the Intellectual Property Bulletin about this survey on the authors' law firm website, www.fasken.com and, for more information about this survey, please contact the authors, John Beardwood and Mark Penner.

About the Authors

John Beardwood is a partner of the firm, engaged in a corporate/commercial practice, with an emphasis on outsourcing and procurement, technology and privacy law related matters. John works closely with clients in advising on and negotiating various technology-related transactions, including outsourcing/procurement, licensing, implementation, distribution, technology transfer, strategic alliance and e-commerce related transactions, including in the airline, health care, financial/insurance institution and public sector contexts.

Mark Penner is a partner in the Technology and Intellectual Property Practice Group with expertise in the acquisition, protection and enforcement of intellectual property rights in the chemical, pharmaceutical and biotechnology areas. Mark's practice focuses primarily on the drafting and prosecuting of patent applications in this area of technology. In addition to patent prosecution, Mark also has extensive experience with preparing infringement, validity, freedom to operate and patentability opinions in the life sciences. On the enforcement side, Mark has been involved in Federal Court proceedings involving patent infringement and validity as well as Notice of Compliance proceedings under the Patented Medicines (Notice of Compliance) Regulations. Mark's practice also involves the IP aspects of corporate transactions (e.g. financing, mergers & acquisitions and joint ventures) such as protection of confidential information, trade secrets and know how, conducting due diligence, as well as technology acquisition and licensing. Mark is registered to practise as a patent and trade-mark agent before the Canadian Intellectual Property Office. He is also registered to represent Canadian applicants before the United States Patent & Trademark Office.
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The Myths about Intellectual Property in Asia

Posted on June 3, 2008 by Tom Petrocelli
Whenever I travel in Asia outside of Japan, I get asked the same question “What are you doing there?” The question always comes with one of two follow up statements. It's either “They don't really have any intellectual property of their own. They just make things for the real innovative companies.” or “They just steal everyone else's IP as well as each others.”

Both the question and the statements are pretty ugly and, even worse, ignorant. Two myths should immediately be dispelled about what is happening in Asia. First, there is a lot more going on in Asia than manufacturing. Second, they care very much about IP, and not just their own.

Myth 1: Asia only makes things for other people.
Ignoring for the moment that Asia is a big, diverse, place that simply can't be painted with the same brush, there is wholesale change going on in China, Taiwan, Singapore, and India. It is true that these countries have a vast, low cost manufacturing base. It is also true that they do tremendous business in contract manufacturing and low-cost services. However, it is no longer the case that this is all they do. Just look at companies like HTC, whose smart phone may give the Apple iPhone a run for the money. Another example is Lenovo, a major producer of laptops computers. Check out Huawei, a huge telecommunications equipment manufacturer just now making inroads in North America. All of these companies are in the business of creating their own innovative products. That means innovation and intellectual property.

Myth 2: They steal IP! They don't want to protect my IP or even their own.
Piracy happens throughout the world but that doesn't make everyone a thief. For example, The Pirate Bay, a bit torrent aggregator, known for their disdain of US intellectual property laws, are in Sweden. Yet, no one would accuse the Swedes of being IP thieves. In fact, people in Asia have the same issues, worries, and goals for intellectual property as the rest of the world. It's only that the people in China, Taiwan, and India came into the game a bit later. Many of legal protections, available in the US or EU are also available in Asia. Some are even better than what we have in the US. They are also investing in infrastructure for managing IP. Companies in Asia are keenly aware that they can't misappropriate other people's IP and expect other countries to protect theirs. That is no different than it is in the US or EU. So, no. Businesses in Asia are just as worried about IP and are as much spending time and money to protect it as anyone else in the world.

All in all, Asia is an exciting environment full companies that are creating really interesting products. Though nascent, Asia is on the road to becoming a technology powerhouse just like the US and EU.
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Intellectual Privilege or Imaginary Property?

Posted on February 21, 2008 by IP
"Does it matter what we call it?" asks Cory Doctorow in an interesting article today in the Guardian: "Intellectual property" is a silly euphemism.

Fundamentally, the stuff we call "intellectual property" is just knowledge - ideas, words, tunes, blueprints, identifiers, secrets, databases. This stuff is similar to property in some ways: it can be valuable, and sometimes you need to invest a lot of money and labour into its development to realise that value.
Tom Bell calls it "Intellectual Privilege" in a book he's writing under the title Intellectual Privilege: Copyright, Common Law, and the Common Good, a draft of which is now available on his blog with the same title, under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.

Someone else calls it "Imaginary Property" in the comments on this post by Professor Lawrence Lessig about Tom Bell on "Intellectual Privilege".

We don't have strong feelings one way or another what you call it, as long as it's IP.
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