Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 39 cent of EU tariff lines become duty-free for goods that originate in Canada. "These duty-free tariffs encompass machinery and some clients say maybe that will make them more competitive. They are also starting to look more at the European climate than they might have been inclined to do so in the past," he says. "That translates into a change into some company's strategy in getting patents," says Turgeon. "Whereas they might have been more focused on the United States and Canada, now they are considering filing their patent application in Europe because it may be a good market." Most of Turegon's practice is in pat- ent litigation, but he also does patent portfolios. "There is still a lot of work to be done and a lot of uncertainties. We don't know what changes will be made to the regula- tions to implement the right of appeal for innovator companies to avoid dual litigation, for example. But I think the objective is there; the question is how we get there," says Turgeon. Some IP lawyers see the changes as a positive step forward, while others sug- gest it only serves to further complicate what has always been a complex system to navigate, especially for clients who do business around the world. "Any time you change the law, it's going to cause legal questions that are going to have to be solved, but in terms of whether or not it's harmonizing things, I think in general it does," says Mark Bier- nacki, partner and patent and trademark agent with Smart & Biggar Fetherston- haugh. For changes under the Trademarks Act regarding geographical indicators, CETA will aim to harmonize and bring Canada more in line with the EU practice. It also aligns Canada more with Europe and the United States for changes around patent term extension or restoration. Although the regulations haven't been released yet for the possible changes to notice of compliance, it appears Canada is moving closer to the U.S.-based system. "In theory, it should be harmoniz- ing us with some of our largest trading partners," says Biernacki. "On the pharma litigation side, I think there have been complaints from both generics and inno- vators on how long it takes to get disputes resolved, so I would think streamlining that would be embraced by all parties." David Bowden, an associate with Deeth Williams Wall in Toronto, says the changes "clearly limit Canadian trademark rights as WHEREAS [COMPANIES] MIGHT HAVE BEEN MORE FOCUSED ON THE UNITED STATES AND CANADA, NOW THEY ARE CONSIDERING FILING THEIR PATENT APPLICATION IN EUROPE BECAUSE IT MAY BE A GOOD MARKET. DAVID TURGEON, Fasken Martineau DuMoulin LLP Untitled-2 1 2017-01-11 11:22 AM

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