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Increased IP Protections are on the Table: Canada Moves Towards Ratifying the USMCA

Bill C-100, or the “Canada—United States—Mexico Agreement Implementation Act”, was tabled in the House of Commons last week on Wednesday May 29, 2019. This marks a major step towards Canada ratifying the United States-Mexico-Canada Agreement (“USMCA”), which would replace the current North American Free Trade Agreement (“NAFTA”). Ratification efforts are also underway in the United States and Mexico. Chapter 20 of the USMCA, which concerns Intellectual Property Rights, can be found in full here. The full text of the Bill can be found here.

The Bill would introduce significant changes regarding intellectual property protections in Canada if it comes into force. It includes increasing the minimum period of data protection for biologics from 8 years to 10 years (section 56(3) grants the power to implement the necessary provisions by regulation), and additionally amends or adds provisions relating to trademark enforcement (section 106-108) and trade secret protection under the Criminal Code (sections 33-36). The Bill also amends parts of the Copyright Act (section 22-32).

Notably absent in the Bill are provisions or amendments to extend copyright terms from life of the author plus 50 years to life of the author plus 70 years as contemplated by Article 20.63 of the USMCA. Also absent is the introduction of patent term extensions for unreasonable delays in the issuance of a patent as set out in Article 20.44 of the USMCA. How Canada will ultimately fulfill these USMCA obligations thus remains to be seen. Under the terms of the USMCA, the government has 2½ years to implement the provisions relating to the term of copyright and 4½ years to implement the provisions relating to patent term extensions for delays in patent prosecution.

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