Conclusion

• Author: David Vaver
• Pages: 666-692

666

CHAPTER 6

CONCLUSION

Intellectual property law as a whole continues to be ripe for wholesale

reconsideration, both nationally and internationally.1 One might start

with its fundamental premise: that the system of rights it establishes

enhances the goals of desirable innovation, creativity, and the widest

distribution of ideas, information, products, and technology in the most

eff‌icient and, generally, best way. This premise is of course empirically

unprovable, even if all agree on what “best way” means. It assumes that

throwing a private property right around every activity with potential

value in exchange and creating a market in such rights ultimately bene-

f‌its not only the right-holders but also, in equal or at least reasonable

measure, the communities of which they form part. It further assumes

that this best of all possible worlds can exist only if the property/mar-

ket model is the sole mechanism to achieve the stated goals, and that

no other system — even one that includes the model as one compon-

ent — could be devised that would benef‌it the community more.

In fact, intellectual property already functions within a mixed sys-

tem of public and private sector policies that affect cultural and eco-

nomic behaviour. These policies include tax incentives, government

contracts, direct subsidies and charitable contributions to arts, regional

development funding, honours and prizes, and social rewards for gen-

1 This chapter is, depressin gly, little different from its predecessor in t he f‌irst

(1997) edition of this book. Maybe it was all wrong the f‌irst ti me around and

is no better now, or (more likely) IP law is simply to o resilient to fundament al

change. Will t he corresponding chapt er in the third edition be a ny different?

Conclusion 667

erally approved activities. The idea that intellectual property should

dominate discourse, to the reduction or elimination of all else, is sim-

ply one ideology. It cannot be true of all times and places. It is not true

of Canada today. Whether it should be is a different question.

Even if intellectual property law is accepted as the best method

of stimulating high levels of innovation and social progress, the way

it operates in Canada hardly achieves these goals or seems compat-

ible with the aspirations of a modern liberal democracy. The laws are

poorly drafted and poorly integrated with one another, and cannot be

understood except by specialized lawyers. However much the rhetoric

of inventors, creators, and innovators is employed, the Acts seem more

designed by big business for big business. Smaller operations and the

general public are left to the side as passive viewers — to be affected,

but not themselves to affect anything.

The rights can also be f‌iendishly expensive to enforce. Two decades

ago, a doyen of the intellectual property bar pointed with apparent pride

to the fact that Canadian patent litigation was f‌ive to ten times cheaper

than its U.S. counterparts. Still, bills in the hundreds of thousands of

dollars were then “reasonably common,” although it was “very rare” for

fees and disbursements to exceed $1 million.2 Presumably Beloit Can-

ada Ltée v. Valmet Oy was one of those very rare cases, “almost Dickens-

ian in its length and complexity,” according to the judges hearing yet

another appeal concerning it.3By early 1995 the litigation had run up

$2.1 million in accountants’ fees alone to ascertain that the defendants

owed the patent holder some $3.6 million for infringing (a sum later

increased by compound interest apparently spanning a decade and a

half). The lawyers’ bills were not likely trumped by those of the ac-

countants. After twenty years of litigation, the plaintiff was presumably

left with something more than a place in Canadian legal history.

It would be nice to say that what was true then is no longer true now,

and after all it was a patent case. But little has changed since, whether

for patent or other IP litigation. From the late 1990s, the momentous

2 Consumer & Corporate Affairs Canada, Intellectua l Property: Litigation, Legis-

lation & Educat ion: A Study of the Canadian Intellect ual Property and Litigation

System by G.F. Henderson (Ottawa: Supply & Se rvices, 1991) at 17 [Henderson].

For similar cr is de cœur about U.K. patent litigation, s ee Nichia Corp. v. Argos Ltd.,

[2007] EWCA Civ 741 at [1]–[2]; Research in Motion U.K. Ltd. v. Visto Corp., [2008]

EWHC 335 (Pat. Ct.) at [16] (claimant’s “astonishing” costs of nearly £6.5 million

for f‌ive-day patent tr ial; no comment on defendant’s costs of £1.6 mi llion).

3 Beloit Canada Ltée v. Valmet Oy (1995), 61 C.P.R. (3d) 271 at 274 (Fed. C.A.),

rev’g in part (sub nom . Beloit Canada Ltd. v. Valmet Oy) (1994), 55 C.P.R. (3d) 433

at 435 (Fed. T.D.), where the trial judge spea ks unenthusiastic ally of his experi-

ence presiding o ver the remedy phase of the cas e.