Conclusion

• Author: David Vaver
• Pages: 666-692

666

CHA PTER 6

CONCLUSION

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

reconsideration, both nationally and internationally.1 One might sta rt

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 empir ically

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

throwing a private property right around ever y activity with potential

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

f‌its not only the right-holders but al so, in equal or at le ast rea sonable

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

that thi s 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 th at includes the model as one compon-

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

In fact, intellectual propert y already functions w ithin a mixed sys-

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

nomic behaviour. These policies include tax i ncentives, government

contracts, direct subsidies and charitable contributions to arts, regional

development funding, honours and pri zes, and soc ial 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 6 67

erally approved activities. The idea that intellectual propert y should

dominate discours e, to the reduction or elimin ation of all el se, is si m-

ply one ideology. It cannot be true of all time s 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 be st method

of sti mulating high levels of in novation and social progre ss, the way

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

ible with the a spirations of a moder n liberal democracy. The laws are

poorly drafted and poorly integrated w ith 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 af fected,

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 it s U.S. counterparts. Still, bills in the hundred s of t housands 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.3 By early 1995 the litigation had r un up

$2.1 million in accountants’ fees alone to ascert ain that the defendant s

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

increased by compound i nterest 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 tha n a place in Canadia n 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

Syste m 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.