Protecting IP on the high seas – Innovation Supercluster Initiative, requires Intellectual Property Strategy
The main asset of innovation is Intellectual Property. Applicants looking to participate in the Innovation Superclusters Initiative must be vigilant of their Intellectual Property.
This article addresses:
- Intellectual Property considerations applicants should bear in mind while designing an Intellectual Property Strategy; and,
- The Requirements for an Intellectual Property Strategy.
The Innovation Superclusters Initiative
In response to demands for innovation, the Canadian government has established the Innovation Superclusters Initiative. The Innovation Superclusters Initiative is investing up to $950 million by 2022 to accelerate the growth and development of business-led innovation superclusters (for more information on this, see our previous article, No Compass Needed – Ocean Supercluster Activities Explained). Government money will be matched by an industry-led consortia which comprise the supercluster.
The application process
Applicants to the Innovation Superclusters Initiative should be aware that there are two phases in the application process, described below.
Application phase 1
Eligibility in the first phase of the applications process requires that you must:
- propose projects plans (for more on project plans, see our previous article, Mapping Out Your Plan For a Technology Leadership Project In The Ocean Supercluster); and,
- meet eligibility criteria (for more on project eligibility, see our previous article, Project Eligibility in the Ocean Supercluster – Making Sure Your Proposal Can Set Sail).
Eligible applicants will be invited to participate in the second phase of the application process.
Application phase 2
Eligibility in the second phase of the application process requires that you must:
- be represented by an Entity incorporated as a not-for-profit organization with a Contribution Agreement; and,
- have an Intellectual Property strategy.
What is an Intellectual Property Strategy?
The Intellectual Property Strategy document is a requirement for applicants seeking to participate in the Innovation Superclusters Initiative. The Intellectual Property Strategy must set out the applicants plan in achieving Superclusters program objectives:
- to facilitate and incentivize increased technical collaboration;
- stimulate the member’s participation and ongoing commitment to the Entity; and
- accrue lasting benefits to Canada.
Essentially, to meet program objectives the Innovation Superclusters Initiative requires policies within the Intellectual Property Strategy to facilitate “frictionless access” to ideas and innovation – sharing Intellectual Property. While “frictionless access” to Intellectual Property is a key part of the utility of the Innovation Superclusters Initiative that sharing creates risks to Intellectual Property that should be identified and mitigated prior to participation.
Intellectual Property considerations
Applicants must be mindful that their Intellectual Property is properly protected within the Intellectual Property Strategy. Some considerations include:
- Ownership of Intellectual Property, Royalties, Ownership and Distribution of Intellectual Property Rights
- Personnel & Inventors contracts
- Patent v. Trade Secrets
- Background Intellectual Property analysis to determine scope for innovation, while avoiding infringement
- Project selection and eligibility (see our previous articles, Mapping Out Your Plan For a Technology Leadership Project In The Ocean Supercluster and Project Eligibility in the Ocean Supercluster – Making Sure Your Proposal Can Set Sail)
- Differentiated rights and responsibilities of members, including scope of research and development – listing who is in and who is out
- Nature of Intellectual Property protection desired, and barriers to protection i.e. freedom to operate searches
- Procurement/licensing strategies with respect to background Intellectual Property
- Management and protection of Intellectual Property while under development – Intellectual Property record keeping systems
- Confidentiality/Non-Disclosure and Non-Compete Agreements
- Commercialization of Intellectual Property developed by the Entity
- Third-Party collaboration to commercialize the Entity’s Intellectual Property
- Maintenance and enforcement of Intellectual Property rights
- Incremental innovations and resulting Intellectual Property
There are a number of Requirements which must be included in an applicants Intellectual Property Strategy:
- how protection for Entity-supported Intellectual Property will be obtained;
- how rights will be owned and managed, and by whom;
- how background Intellectual Property will be treated;
- if and how non-Entity supported intellectual property will be acquired;
- access to Intellectual Property and mentorship, how all members will be supported and mentored in regard to their intellectual property needs;
- Benefits of Intellectual Property Strategy;
- how royalties on Entity-supported Intellectual Property will be managed;
- how the ownership and management structures further the Entity’s objectives, incentivize ongoing commitment and cluster participation, facilitate collaboration, and how the strategy will benefit the economic development of Canada;
- substantive policies which provide members with “frictionless access” to Entity supported intellectual property
At Stewart McKelvey, we have been closely involved with the Innovation Superclusters Initiative and understand the opportunities this will provide to our clients. Stewart McKelvey has over 30 years of leadership as Atlantic Canada’s first and largest regional law firm. The Ocean Supercluster is primarily concentrated in Atlantic Canada; waters, in which Stewart McKelvey has navigational expertise. With our forward thinking approach, we can navigate the rough Superclusters waters with our clients. Together, we can bring innovation to application.
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