November 4, 2016

Open Letter to Canada’s Innovation Minister Navdeep Bains: Take Action on the Unintended Consequences of the Public Servant Invention Act


Open Letter and Call for Action to Navdeep Bains, Minister of Innovation, Science and Economic Development

Dear Minister Bains

As you know the CATAAlliance Innovation Leadership Council applauded you for your post budget comments on using government procurement to support industry growth.

“If there’s a good idea, if there’s a small company in Canada, if there’s an entrepreneur that has an idea, I think the government should do business with that person. Because when that person goes abroad, wants to go global or deal with other businesses, they always ask the question: Are you doing business with the government?”

However, we are greatly disturbed by the inability of this government to “walk the talk” on a longstanding procurement issue. Let me explain.

There is another CATA initiative underway to fix the unintended consequences that the Public Servant Invention Act (PSIA) by getting support for a legislative amendment to the Act as it relates to retired Canadian Armed Forces persons on a Supplementary Reserve List.

Full details of this advocacy initiative (launched in April 2016) can be found here:

The reason this issue has come to the forefront is a result of patent litigation infringement initiated against Her Majesty as a fall-out from a flawed government procurement program.

In 1999 Louis Brown of NOR Environmental developed and patented in the US and Canada specialized shelters and filtration systems (ColPro System) used in the event of a chemical or biological attack. Throughout the early 2000’s Louis Brown presented this system to the Department of National Defense and Public Works on several occasions, pointing out the superior features and novel design and the fact that he had an issued patent in the US and a pending patent in Canada. With the knowledge obtained from Louis Brown, DND issued an RFP in 2009 that specified the features that were patent protected by Brown. Despite NOR responding to the RFP, the contract was awarded in 2010 to a US defense contractor (HDT).

We appreciate that DND and Public Works could have made the procurement decision based upon HDT being a cheaper alternative or that NOR was non-compliant in the bidding process, however there is NO excuse whatsoever for the contempt that DND and Public Works showed for the Canadian Patent system.

DND and Public Works felt comfortable taking Louis Brown’s Intellectual Property specifying it in an RFP before making any arrangement for a license to his patent or compelling the successful bidder to take a license to Brown’s patent.

While all this happened under the previous Conservative Government and we believe based upon your stated desire to help Canadian industry do business with the government that this would not happen again, this government is standing by doing nothing to alleviate the fallout from a flawed litigation strategy that the Crown is using against Louis Brown and NOR to try and defeat the patent infringement claim against Her Majesty.

To date the Crown has attempted to either invalidate Brown’s patent based upon the flawed wording in the PSIA or attempt to claim ownership of Brown’s patent through the flawed wording in the PSIA.

Until a Minister champions a legislative change to the PSIA the fallout of the court ruling will have severe unintended consequences for industry in Canada and will be an unnecessary obstacle to creating Canada as an Innovation Nation. It will also work at cross purposes to your procurement initiative and CATA’s advocacy program to support this initiative.

We are hopeful that with your insight into how to change government procurement you would agree to a change to the PSIA.

We eagerly await your response.

Yours sincerely,

On behalf of the CATAAlliance Innovation Leadership Council
John Reid, CATA CEO    

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