Canadian IP in 2020

Looking back on an unusual and eventful year, we can see how IP practitioners worked through the pandemic with all of its challenges. Most statistics show a significant drop in March, April and May of 2020 but by June most trends appear to be back to previous levels.

In the Federal Court and Federal Court of Appeal, where most intellectual property matters in Canada are litigated, the following chart shows a measure of activity in the Court. This is based on the number of documents being filed with the Court and directions/orders being issued – i.e. docket entries – on matters I have identified as intellectual property, per month. This shows a measureable drop in activity in March when lockdowns and court closures took effect in mid-March and were very apparent through April and May.

The Federal Court pivoted to virtual proceedings and the suspension of deadlines ended in June and July in the Federal Court, while in the Federal Court of Appeal, proceedings were re-activated weekly through the remainder of the year. Most intellectual property matters are case managed and many cases likely continued with varying degrees of delay under case management directions. I participated in the Federal Court’s first virtual trial which resumed on May 25th.

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At the Canadian Intellectual Property Office (CIPO), from the currently available information, filings also dropped off in March, April and May. While production and processing at CIPO was affected by the lockdowns, this analysis focuses on the filings by practitioners.

For trademarks, a comparison of 2020 to 2019 shows a reduction in marks being filed between March and May. For trademarks, the 2019 data was affected around April 23 by Easter weekends which impose days for which no marks are filed. In June 2019, there was a significant change in the trademark regimes which resulted in a) a large number of marks being filed immediately before and after the change (see my column from September 2019, “New Era in Canadian Trademarks”) and b) the ability to receive filing dates on weekends and holidays. In 2020, various deadlines were suspended by CIPO due to the pandemic, which came to an end in early September. The data I have seen does not show a significant number of filings that took advance of the suspension of these deadlines.

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Patents are not typically published publicly for 18-months after they are filed so public information on the actual patent applications filed in 2020 is not yet available. The patent office publishes monthly ‘production’ numbers that includes the number of applications filed – both direct filings as well as national phase entries from PCT international applications. This data shows a drop in production as compared to previous years in March, April and May but a large influx in June, likely catching up on the backlog. Most patent applications in Canada, around 80%, are national phase entries into Canada where the deadlines are fixed years in advance so it appears that most patent professionals continued to meet the deadlines for filing patent applications through the pandemic rather than rely on the normal or pandemic-related, extensions of time that may be available.

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Overall, the trends indicate that most of the activity bounced back relatively quickly after the initial lockdowns in March, April and May. Practitioners were able to use electronic filing systems provided by the Federal Court and CIPO to continue their practices while working remotely. The longer term trends probably won’t reveal themselves for months or years in terms of the pace of innovation as captured in new patent filings, availability of capital for new investment, the launch of new consumer products requiring branding, and burn out from practitioners and the public from long term lockdowns and uncertainty.

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