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Canada’s national strategy for critical infrastructure and intellectual property

After addressing Canada and Québec's critical mineral strategy and intellectual property (IP), we now turn our attention to Canada’s National Strategy for Critical Infrastructure and its  potential impact on intellectual property.  

According to Public Safety Canada’s website, “critical infrastructure” (“CI”) refers “ processes, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government. CI can be stand-alone or interconnected and interdependent within and across provinces, territories and national borders. Disruptions of CI could result in catastrophic loss of life, adverse economic effects and significant harm to public confidence.” It further states that “the Government of Canada uses a risk-based approach for strengthening the resiliency of Canada's vital assets and systems such as our food supply, electricity grids, transportation, communications and public safety systems.”

Though the stated goal is to “build a safer, more secure and more resilient Canada”, and identifies ten (10) sectors: (i) energy and utilities; (ii) finance; (iii) food; (iv) transportation; (v) government; (vi) information and communication technology; (vii) health; (viii) water; (ix) safety; and (x) manufacturing, the National Strategy for CI also seeks to establish a “collaborative, federal-provincial-territorial and private sector approach built around partnerships, risk management and information sharing and protection”.  This National Strategy, of course, cannot be read in a 'silo', and must be read in conjunction with other publications, including:

  • Canada’s Action Plan for Critical Infrastructure, which consists of a blueprint for how the foregoing strategy will be implemented to enhance the resilience of Canada's CI. This plan clearly emphasizes that “Canada’s critical infrastructure remains a high value target for foreign interference, including for the purposes of intentional service disruptions and intellectual property theft”;

  • Minister Champagne, Holland and Leblanc’s statements on new measures to protect Canadian research, which were just released on January 16, 2024, based on a new policy on sensitive technology research and affiliations of concern. In addition to the prior measures reported in our research security blog, the object of these new measures is to stop funding sensitive technology research areas, wherein “any of the researchers involved in activities supported by the grant are affiliated with, or in receipt of funding or in-kind support, from a university, research institute or laboratory connected to military, national defense, or state security entities that could pose a risk to Canada’s national security.” Examples of technologies include artificial intelligence (AI), natural language processing, quantum computing, amongst many others set forth in the Sensitive Technology Research Areas guidelines. The organizations which are considered to pose a risk to Canada’s national security are those listed in the Named Research Organizations, which will be updated regularly; and

  • Canadian Centre for Cyber Security, which provides guidance with respect to security considerations for critical infrastructure.

What's the relevance of the National Strategy for critical infrastructure and intellectual property (IP) together?

There is an inherent tension between matters of national security, which can encompass critical mineral and critical infrastructure technologies, and intellectual property. Indeed, one seeks non-disclosure of information (i.e., “the inappropriate release of sensitive information that poses a risk for a province or local authority would often also constitute a risk for Canada” as indicated in the National Strategy) and the other, the IP framework, seeks disclosure of information so as to fulfill patentability requirements and the objective of the patent system: the “bargain” or quid pro quo, in which the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge ([2012] 3 SCR 625 at para. 32). Thus, when seeking IP rights, it is important to gauge the level of disclosure required so as to not run afoul national security (and corresponding legislation where applicable) and disclose sensitive information that poses a risk.

That said, a recent PatSnap search has revealed that most technologies referencing “critical infrastructure” are found in international patent classification (IPCs) G06F 21, which relates to: “Security arrangements for protecting computers, components thereof, programs or data against unauthorized activity”, amongst others identified in the below diagram:

A different representation, the “cell representation”, shows the keywords and phrases of the records owned by the top current assignees in the technology field. Some keywords in the critical infrastructure space, include “wireless communication”, “electric power grid”, and unmanned aerial vehicles (UAVs), amongst others, as visually represented below:

In closing, researchers, funders and companies operating in the critical infrastructure space, will need to keep up to date with Canada's evolving measures to protect research as well as named research organizations, which may pose a risk to Canadian national security.

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