A February 5, 2016 ruling by the Federal Court of Appeal determined that “members of the Canadian Forces do not need to be employed or receive benefits to be included in the definition of “public servants” for the purpose of the PSIA”.” This ruling means private citizens who are retired Canadian Armed Forces personnel on a Supplementary Reserve list are deemed “public servants” and both they and their private industry employers must adhere to the Public Servant Invention Act and notify and receive approval from the appropriate Minister before filing patent applications or risk a claim of ownership by the Government. This ruling also impacts the potential ownership of issued patents thought to be owned by private industry.
Ottawa, ON...CATAAlliance (www.cata.ca), Canada’s One Voice for Innovation Lobby Group, has again called for an immediate amendment to the Public Servants Inventions Act to eliminate the unintended consequences to private industry that have been created from this ruling.
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CATA CEO, John Reid observed, “ It is now clear in law that retired CAF on a supplementary reserve list are considered public servants even though they get no compensation or benefits from the government for being on the list. (They are on the list for love of country to be called upon in case of emergency). This has created and will continue to create severe unintended consequences for companies who have employed or are considering employing retired CAF who are on supplementary reserve lists.”
Why It Matters
The impact of the ruling on veterans who are transitioning to the private sector are significant and far reaching including:
1. retired members of the Canadian Armed Forces now think twice about transferring to the Supplementary Reserves fearing the label of ‘ public servant’ will be viewed in a negative light by private sector employers, therefore, compromising DND’s access to this talent pool in the event of a national emergency;
2. programs currently focused on assisting veterans to transition to the private sector will be confronted with a new hurdle when promoting the contribution skilled veterans can bring to industry;
3. private industry, including the technology and defence industries, relies on a pool of highly trained Canadian Forces Members to contribute their knowledge and skill after leaving active duty. This ruling creates a degree of uncertainty and risk when considering veterans for research and development;
4. employers in the technology sector are placed in the compromising position of having to decline working with veterans or risk exposing their proprietary, confidential intellectual property applications to an inefficient government bureaucracy and await a decision before securing a competitive market advantage; and,
5. the Ministry of Innovation, Science and Economic Development, along with other ministries, have a number of transition programs for veterans in development.
A simple amendment to the Public Servants Inventions Act would obviate the problem through the inclusion of this deeming provision: “ public servant means any person employed in a department, and includes a member of the Canadian Forces or the Royal Canadian Mounted Police. A member of the Supplementary Reserve of the Canadian Forces shall be deemed not to be a public servant for the purposes of this Act.”
Reid concluded, “ No further close examination or study is required. A legislative lawyer could draft up a bill in under an hour. Any Minister could then move it through caucus with little if any opposition and a majority government could make it law. It is highly unlikely that anyone in the opposition would object.”
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The Canadian Advanced Technology Alliance (CATAAlliance) is Canada's One Voice for Innovation Lobby Group, crowdsourcing ideas and guidance from thousands of opt in members in moderated social networks in Canada and key global markets. (No Tech Firm Left Behind)