Intellectual Property Rights in the Canada-United States Relationship

By Hunter, Christopher | Canada-United States Law Journal, Winter 2011 | Go to article overview

Intellectual Property Rights in the Canada-United States Relationship


Hunter, Christopher, Canada-United States Law Journal


Session Chair--Christopher Hunter

United States Speaker--William Manson

Canadian Speaker--Margaret Ann Wilkinson

INTRODUCTION

MR. HUNTER: We should get started with the afternoon session, if everyone could please take their seats. This should be an interesting discussion. My name is Chris Hunter, (1) and on my left is Bill Manson. (2) On my right is Margaret Ann Wilkinson. (3) This panel is asked to talk about intellectual property and intellectual property rights in the Canada-United States relationship, particularly examining the protection and enforcement of intellectual property rights and potential methods to achieve convergence.

Our first speaker this afternoon is Bill Manson. Bill is deputy general counsel at Lubrizol here in Cleveland, a global specialty chemical company with manufacturing facilities around the world. It is one of the stars of Cleveland. (4) Bill has been with Lubrizol since 1995, working in legal compliance contracting. Before that, he was in the litigation section of an international law firm. I should also mention he is a graduate of Bowling Green State University here in Ohio, and has a Ph.D. in Economics from Virginia Tech in 1980. Bill, the floor is yours.

UNITED STATES SPEAKER

William Manson *

MR. MANSON: Thank you. First, I guess I should begin with some disclaimers. I will do my best to keep you awake for this last hour before you head off to the cocktail hour. That is not a disclaimer; that is a goal. My disclaimer, of course, is that the opinions are my own and not necessarily those of my clients or the many fine professionals with whom I have worked. That really had to be reinforced given that one of our last speakers, Cyndee, is from Lang Michener. When I was asked to participate in this panel, I called some of my dear friends who happened to be at Lang Michener, Don MacOdrum (5) and Peter Wells, (6) in particular, and chatted with them about Canadian patent law. I spent many years working with them on patent litigation, so, to the extent I learned from them and got it wrong, it is certainly not their fault.

At my company, we are fortunate that for the last ten years, we essentially avoided patent litigation. But for many years before, Lubrizol was engaged in active litigation to enforce its patent rights. One of the things I am often asked by people from other parts of the industry is, "What value did you get from enforcing your patent rights against that company? You have spent so much in litigation." That can be a difficult question to answer. Litigation is always costly, and it is always a disruption for the business team. Even if you prevail, it can be difficult to determine if the victory was worth the cost. Many aspects of the costs and benefits are hard to quantify. However, one of the hardest things to quantify is the value, if any, of the message that is sent by companies who protect their rights. There is, of course, value in sending a message to the market that you are indeed willing to take on the costs of litigation to enforce your rights.

Today, I would like to give you a business person's perspective of enforcing patent fights. I am not an intellectual property (IP) practitioner. I am not a member of the IP Bar. I do not file patent applications. When we get into the technical subjects about what is patentable, I really cannot address those subjects; I will rely on my learned colleagues on the panel to address those issues. However, I have spent time with a very important part of patent law. Once I get a right, what can I do with it? If someone is infringing my patent, what happens and where do I go?

We have to remember that patents are creatures of national law, and like every other regulatory subject that we have addressed during this conference, there are going to be differences. The laws in Canada are different to some extent from the laws in the United States. …

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