Canadian Lawyer

32 J U N E 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m "So the question is, will the current IP rules be adapted, or will need to be adapted, to respond to these emerging technologies?" asks Awad, before quickly answering his own question. "The answer will be yes. We need to think differently about how to protect these types of tech- nologies," he says. new ideas, old rules One of the important features of a good IP system is certainty, says Noel Cour- age, a partner at intellectual property boutique Bereskin & Parr LLP. Cer- tainty about what can be protected by IP laws drives innovators to create and investors to take chances, says Courage. But when it comes to newer technolo- gies — those based on information and knowledge — innovators sometimes have to paint in the dark. Take, for example, the patentabil- ity of software-based inventions. "For a long time in Canada and the U.S., there's been uncertainty about whether you can patent software-related inven- tions," says Courage, adding the dec- ades-old controversy is still ongoing despite software's place as an important and evolving area of the world econ- omy. "Legislatures don't want to touch it because it's a complex issue and it's not a highly glamorous issue, and courts are kind of making it up as they go." He adds that, in the 1990s, a U.S. court opened the door to software pat- enting, but that decision was overturned by another court in recent years. "So, again, the goal posts have moved," he says. "There's a lot of uncertainty around these issues, and it's not good for the companies and the industry, it's not good for investors, it's not good for anybody." Controversy also dogs cutting-edge innovation in the pharmaceutical indus- try, particularly around new forms of diagnostic tools. Courage, who is a member of his firm's life sciences group, says in the '80s and '90s, diagnostic focus was on individual genes, but experts are now working on finding out how com- binations of genes work. A new frontier in intellectual property, the endeavour involves analyzing changes that happen in the body of a person who is at risk for a certain disease. Its result is proactive diagnosis and personalized care. According to Courage, the patent office isn't convinced diagnostic inno- vations that measure biomarkers can be patented. "There have been cases saying, basically, that measuring change in biomarkers in the body is effectively a law of nature — you're just measuring changes that occur in a person, so this has not been touched sufficiently by the hand of a person to be qualified as an invention. So there have been cases where really legitimate inventions have been kicked to the curb because of this type of approach," he says. "That's an example of how the patent offices are not keeping up." Jacqueline Chernys, senior counsel for intellectual property at Calgary- based, Chinese-owned oil and gas company Nexen Inc., says knowledge- based innovation will replace tradition- al inventions in oil and gas, too, but whether IP laws create an incentive to do so is still questionable. "A lot of our work going forward won't necessar- ily depend on traditional innovation of physical products but on our ability to leverage our intangible assets like data to create certainty on how we will do things in the future," says Chernys. "We'll be relying on big data and ways that we can leverage big data. Some of that will depend on the extent to which we can get a competitive advantage from ways of manipulating data." The kind of intellectual property issues that could come into question with big data could be both copyright and patent laws. If someone has a pro- prietary method of looking at histori- cal data to be able to be predictive of future output, then the ability to protect that specific methodology may have an impact on how companies will use their data, explains Chernys. On the flip side, of course, being able to pro- tect unique ways of manipulating data means restrictions for other companies who want to do studies on their own data. For the oil and gas industry, how patent laws will deal with 3D printing technologies will also have a major impact on business, as companies faced with low commodity prices look for cheaper ways of doing things. Chernys intellectual property special report IP rights have become the global currency for all innovators in all markets these days. We're talking about intangible assets before talking about the price of oil or the raw materials. Bassem Awad, Centre for International Governance Innovation

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