Canadian Lawyer

March 2021

The most widely read magazine for Canadian lawyers

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Page 6 of 43 5 decisions, she says, has been "muted" and the only accelerated process for patent examin- ations related to COVID-19 applies only for businesses with fewer than 50 employees. "For the vaccines and treatments that we know about . . . those products have not been developed by small entity companies." Noel Courage, a patent lawyer and co-leader of the COVID-19 practice group at Bereskin & Parr LLP, says his clients have not yet been focused on expediting their patents during the pandemic. "What I've seen is that companies are more focused on getting their collaborations going and getting their funding in place and getting their R&D complete. Patent filings are getting done, [but] I don't find that there's a lot of expediting." What all IP practitioners seem to agree on, though, is that although COVID caused significant delays at first, the shift to virtual proceedings and e-filing should pay off in the long term. In fact, Chief Justice of the Federal Court Paul Crampton says that his court's goal of limiting trials to 10 days has been easier to "[Normally], if you file a trademark application, it's not getting examined within two years of filing, which is an exceptionally long period of time." Mark Evans, Smart & Biggar LLP reach as the reforms put in place before the pandemic were put into overdrive starting in March. "We were already trying to affect a culture shift in the IP space, in particular, for these big drug patent trials and other IP matters," Crampton says. Pre-pandemic, "it was surprising to see that in a number of specific cases, people would give all sorts of reasons why their particular trial couldn't get done in 10 days. . . . So COVID has really helped to the effect that that culture shift in the bar was necessary." For the Federal Court of Appeal as well, Chief Justice Marc Noël says that, while the pandemic did cause delays initially, total dispositions in 2020 were 405 for his court, compared to 479 in 2019, and 23 IP matters were heard since the beginning of the pandemic and seven IP motions were heard since June. "The IP bar has been very responsive to our new means of proceeding," Noël says. EXPEDITING COVID DECISION-MAKING The following expedited processes were announced in 2020: » March 18: Health Canada announces it will fast track the authorization of the importation and sale of masks and respirators. » July 8: The Canadian Intellectual Property Office announces accelerated examinations for Canadian patent applications related to COVID-19 relief for small entities employing 50 or fewer employees. » Sept. 17: Health Canada issues an interim order to expedite the review process for drug applications submitted for authorization where applicants can file further information throughout the course of the review as it becomes available. » Dec. 14: The Canadian Trademarks Office announces that it will grant requests for expedited examinations of trademark applications for goods or services used for the prevention or treatment of COVID-19.

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