++ Action Item: Please review the blog post below (in Canadian Army ONLine), “Supplementary Reserve is a "Public Servant", a member of the armed force, but not a PS in my eyes” in support of ongoing advocacy, Patent Infringement Advocacy Alert: Canadian Patent ruling locks out retired Canadian Armed Forces (CAF) Veterans from advancing Canada’s
Supplementary Reserve is a "Public Servant", a member of the armed force, but not a PS in my eyes (Blog Post)
At one point there were more than 300 people working at BlackBerry that were formerly public servants performing R and D work and for patent purposes, most notably with the CSE, DRDC, RCMP, and Finance. I know this because I held their clearances and negotiated many nondisclosure agreements with the Crown. BlackBerry once had a patent portfolio in excess of 17,000 patents. Think about Nortel, etc.
The trigger here was the plaintiff in this case brought a lawsuit alleging patent infringement, in an attempt to oust a winning competitive bid. He probably had a solid case, save and except for the patent itself. I'm not sure when the Crown decided it was going to get into the business of invalidating patents as a defence to lawsuits, they better think this one through for they may have just created a precedent where they will now have to go after every similar patent claim if they think they have some ownership. One has to be actively defending their IP portfolio in order to keep the trolls out...
Second: to the point of "If a reservist working in his civilian job creates intellectual property as part of his civilian job, who holds the rights to that property?". If there is no nexus between the reservists invention for his civilian employer, there is no obligation to report it. Generally civilian employees must assign their IP created during the course of employment to their employer. If a reservist were to report the invention to the MND, the reservist may end up breaching the confidentiality provisions of his employment contract.
This all needs to be sorted out calmly and with 21st century forethought of an aspiring knowledge based economy. However, when I arrived at work this morning there were no less than 15 "Fwd Re: XXXX" in my mailbox, all from start ups in the tech triangle. "Should we NOT hire reservists?" "Should we FIRE all former public servants?" "How do I protect my company from government lawyers".
To complicate matters, there are many, many contracts between private industry and government that specifically carve out IP ownership and put the government on notice that ownership of IP resides with the private industry contractor or supplier. Are those provisions now void ab initio because such a clause may violate some obscure, poorly written law? Will it make it even harder and less desirable for companies to develop and supply unique items to the government? And many of those thousands of private companies have hundreds of former federal public servants working with them, in fact the reason they are hired is because of their affiliation with the government.
In theory, this ruling could apply to a coast guard auxiliary who invents a better fishing rod.
If anything, this decision creates bad law by tainting a public policy that is supposed to encourage innovation, and the public interest is damaged because it creates more cost in due diligence and potentially slows down or even shuts down (in some aspects) government procurement because an RFP may have to contain terms that explicitly consider and reflect the outcome of this decision.
I hope some patent troll company comes and kicks the doors in at DoJ with some smashing big infringement case, and files the lawsuit in the eastern district of Virginia.
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