Photo by Michael Dziedzic ()

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

Cybersecurity has become a major battlefield in the war between Russia and Ukraine. Even before Russia invaded Ukraine on February 24^th, it had launched waves of cybersecurity attacks on a range of important social sectors of Ukraine. ��The attacks in January focused on governmental websites. According to Ukraine officials, Russia had taken down around Ukraine government websites, including the central institutions such as the Cabinet of Ministers and the Security and Defense Council.

By February, brought down the websites of Ukraine’s defense ministry, army, and two largest banks: �����Ի���. Russia used a sophisticated that reached hundreds of computers from different organizations in Ukraine, including the defense, aviation, finance, and IT service sectors.�� Although Russia never officially admitted it, believe that the Russian government is behind the groups that launched these attacks.

Quad9, a domain name system platform, detected attacks against computers and phones in Ukraine on March 9^th alone. According to cybersecurity expert , Ukrainians are experiencing increasing numbers of phishing and malware attacks during the war.

The Ukraine government responded to the attacks with support from and . The NATO Cooperative Cyber Defense Center of Excellence at Tallinn, Estonia, collaborates with Ukraine to strengthen its national cyber security. The EU had deployed a rapid-response team of ten cybersecurity experts from six different countries to help Ukraine mitigate the effects of the cyberattacks.

In addition to state actors, large private companies have lent Ukraine critical support. For instance, is helping Ukraine with cybersecurity. announced on April 7^th that it had disrupted cyberattacks from Russia targeting Ukraine and organizations in the United States and Europe. Its representative claims that Microsoft can observe Russia’s attack on the Ukraine government and infrastructure since the beginning of the invasion. Microsoft works closely with the Ukrainian government and other organizations to help them defend against the onslaught. Another example is , a space exploration tech company. It provides civilians and tech companies in Ukraine access to the Internet via satellite in rural or disconnected areas.

Private companies, especially tech giants, have been unprecedentedly active in interstate warfare. As cybersecurity becomes an increasingly important part of national security, big tech companies are likely to have more power and a higher level of involvement in global conflicts. While this change may benefit the public interest, it inevitably calls for more scrutiny and regulation.

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was Originally posted on E-TIPS For Deeth Williams Wall LLP on November 10, 2021.

On October 27, 2021, the Office of the Privacy Commissioner of Canada (the OPC)����observations following a series of international engagements between data protection and privacy authorities around the world and four of the biggest video teleconferencing (VTC) companies: Microsoft, Cisco, Zoom, and Google (the Organizations).

Earlier this year, the OPC, along with privacy authorities from Australia, Gibraltar, Hong Kong SAR, China, Switzerland and the United Kingdom (the Joint Signatories), sent an����to several VTC companies commenting on the rapid recent expansion of VTC services and highlighting their concerns about whether the companies were implementing appropriate privacy safeguards in their platforms. The Organizations responded to the Joint Signatories’ open letter and described how they account for privacy principles in the design and development of their VTC services. This initial response led to a series of video calls between the Joint Signatories and the Organizations to discuss how the Organizations implement, monitor, and validate their privacy and security measures.

In its observations, the OPC discusses key areas that the Joint Signatories recognized as examples of good practice and recommended for adoption by the broader VTC industry. These areas include:

1. security, such as implementing a regular security testing schedule and ensuring employees and third-party sub-processors comply with privacy obligations;
2. privacy-by-design by adopting an overarching privacy program and placing all VTC settings at the most privacy protective by default;
3. audience-specific resources, including providing enhanced VTC safeguard features for parties that share sensitive information and custom-guidance documents to assist different groups to choose the VTC settings that suit them;
4. transparency through the use of layered notices and informing users of any sharing of their information with third parties; and
5. end-user control to enable VTC customers to decide what information they share when accessing VTC services and provide alerts when there is a danger that meeting information may become publicly available.

In addition to recognizing good practices, the Joint Signatures also identified the following areas for improvement:

1. making end-to-end encryption available to users;
2. clearly identifying any secondary use of users’ data and providing an option for users to opt-in to such processing; and
3. informing users and, if possible, providing them with the option to choose their data storage location and jurisdictions in which their personal information may be routed through by the VTC company.

Based on the success of the Joint Signatories’ discussions with the Organizations, the Joint Signatories expressed that the engagement process used in this instance may prove valuable in future circumstances where dialogue would assist in clarifying regulatory obligations, identifying good practices, and increasing public trust in emerging technologies.

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Ashley Moniz is the Managing Editor of the IPilogue and the Assistant Director of IP Osgoode.

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On October 15, 2008, at the Four Seasons Hotel in Toronto, IP Osgoode was officially launched. Known as Osgoode Hall Law School’s Intellectual Property Law and Technology Program, Prof. Pina D’Agostino set out to create a program that would lead IP law discourse, foster a vibrant community whose members are welcome to share broad perspectives, and diversify the IP innovation ecosystem. Now, 13 years later, IP Osgoode and the IP Innovation Clinic are still forging new paths and relationships in the IP community.

Here are a few noteworthy accomplishments from the past year:

IP Osgoode

• Runners-Up at the Oxford IP Moot: in March 2021, for the first time. Under Prof. D’Agostino and Prof. David Vaver’s academic supervision and expert coaching from lawyers at Cassels Brock & Blackwell LLP and Deeth Williams Wall LLP, our team placed second after an incredible showing and very close competition, winning the Kirkland & Ellis Runner-Up Prize for Oral Proceedings in the process.
• Leading Legal Disruption Published: in May 2021, . The book, titled Leading Legal Disruption: Artificial Intelligence and a Toolkit for Lawyers and the Law, was co-edited by Dr. Aviv Gaon of IDC Herzliya and Carole Piovesan of INQ Law.
• Two Bracing for Impact Webinars: IP Osgoode collaborated with the Harry Radzyner Law School at the IDC Herzliya and Microsoft Canada to present two new webinars in our Bracing for Impact Event Series: “” in and “” in , the latter being also in collaboration with Alectra’s GRE&T Centre. The webinars featured speakers from around the world and drew in almost 250 spectators between them.
• First Virtual Trademark Hearing: thanks to the Honourable Justice Michael Manson of the Federal Court of Canada, over 70 Osgoode students and faculty members virtually attended the .
• IPilogue’s Return to Daily Publishing: under a new structure, the has returned to publishing daily blog articles written by our dedicated team of IPilogue Writers. Almost 270 articles have been published over the past year alone, more than 120 more than the previous year. We continue to receive and publish guest submissions from students, academics, lawyers, and members of our as well.

IP Innovation Clinic

• IP Innovation ChatBot Launched: The IP Innovation Clinic officially launched its through a . Developed with assistance and support from Norton Rose Fulbright Canada LLP, CIPO, and ISED Canada, the AI-backed ChatBot provides accurate and reliable IP law information for free on our website. Thanks to further funding from ISED through the National IP Strategy, we look forward to continuing to expand the breadth of the ChatBot’s impact and better reach and assist members of underrepresented communities in the IP Innovation ecosystem.
• Mitacs-funded Business Strategy Internships: in March 2021, . The IP Innovation Clinic placed 3 Clinic Fellows with businesses pivoting their operations in response to the COVID-19 pandemic. Prof. D’Agostino was also featured in the marking the official launch of the program.
• Clinic Clients Secured Millions in Funding: two IP Innovation Clinic clients leveraged IP information from our Clinic Fellows to massive expansions of their business. to develop their drone technology and for their sustainable clothing brand.
• First LPP Candidate: during the Winter 2021 Term, under the supervision of IP Osgoode alumnus Reshika Dhir of Bereskin & Parr LLP, the IP Innovation Clinic . We look forward to welcoming two new LPP candidates in Winter 2022.
• The IP Lunch Club Continues: for the second year in a row, and in collaboration with the City of Barrie Sandbox Centre, Prof. D’Agostino’s Directed Reading: IP Innovation Program students presented , educating local entrepreneurs and innovators about registering and commercializing IP rights. Many attendees from these webinars go on to engage the IP Innovation Clinic for IP and commercialization assistance.

As always, we are grateful to all of the students, faculty, partners, and our Advisory Board for making this past year as great a success as it was. None of the above accomplishments would have happened if not for their passion, dedication, and hard work. As we welcome new students and continue to seek out more involvement, we look forward to another wonderful year and welcome new students and partnerships who can help us grow to even greater heights.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Do you ever get weird emails that are poorly-veiled attempts? Strange requests for payments? These phishing attempts are occurring more frequently, but they are just the tip of the ransomware iceberg. Cybersecurity breaches are a serious concern and the ever-evolving technological landscape is an endless playing field for dedicated malicious actors. Widespread breaches exemplify the need to updated software and security policies across all sectors which use online services. With the pandemic and many working from home, these attacks are on the rise. The Canadian Centre for Cybersecurity reported that ransomware is an and

Many Canadians have not heard of , a malicious software (“”) that attacks computers by user files so that malicious actors can request monetary ransom to decrypt or unlock the files. These are typically, though not always, carried out by an unauthorized or unknown transfer of a Users may download and/or open a file that appears legitimate and unknowingly infect the operating system with malware. Accompanying ransom demands are usually requested in the form of Bitcoin due to the presumed anonymity of the transactions. The use of Bitcoin is rampant in these types of attacks – so much so that they have impacted (“K�۰�”) . Sometimes hackers . In a recent report, McCarthy Tétrault’s Cyber/Data Group estimated that Canadian organizations . Ransomware attacks damaging more than finances as they can disrupt operations and corrupt or destroy sensitive data. During the pandemic, hospitals are of utmost concern. The click of an ad, a visit to a website, or a simple file download could risk your data.

In 2017, a high-profile ransomware attack named devastated various organizations worldwide. The automatically spread throughout networkers and did not require users to open or download any files. It encrypted user files and demanded Bitcoin ransom payments to decrypt them. WannaCry targeted “end of life” or outdated versions of and exploited certain vulnerabilities within the software. Operating systems must frequently be updated to implement security patches that prevent such exploits. However, updates for older computers are usually discontinued as technology progresses. Microsoft quickly released further following the mass attack. The international event was and reported to have impacted more than 200,000 computer systems and caused an estimated hundreds of millions to billions of dollars in damage. The WannaCry attack affected organizations such as factories, telecommunication companies, hospitals, governments, and delivery systems. Years later, ��

WannaCry was terrifying when it happened, but many more concerning high-profile cybersecurity attacks have occurred ��within the past year . Just imagine . Some alarming events in the past three months include the following:

• In May 2021, the largest petroleum pipeline in the United States, Colonial Pipeline is reported to have been hacked via a . The password had access to the company’s internal network and was also unfortunately leaked on the dark web. The hackers utilized the credential to attack and extort Colonial Pipeline. The systems started to shut down and the ransom demanded was $4.4 million in payment. The company stated they had no choice but to
• In June 2021, one of the largest meat producers in the US, JBS made the difficult decision to pay the $11 million USD ransom in Bitcoin to resume plant operations.
• On July 4^th, 2021, the ‘,’ allegedly conducted by Russian-associated hackers REvil, hit during the US holiday weekend. Kaseya, a software firm, was targeted in the . Supply-chain attacks, in brief terms, involve compromising a trusted supplier therefore sabotaging the distribution system. The Kaseya attack largely affected US businesses, but Canada was also impacted. Between 800 and 1,500 organizations across the globe were impacted and essentially paralyzed. They demanded from affected users/companies and expressed some willingness to .

It is difficult to know what will happen next with technology, computers, and software. It is best to be proactive and cautious. I have compiled some tips, supported by and the , to help keep your data and your employer’s networks safe:

• Check your computer(s) for updates frequently, and make sure your operating system is still receiving new updates.
• Back up your data periodically and preferably offline. If you are targeted and your data becomes inaccessible, you will feel so much better knowing you had a back-up or two handy.
• Make sure you are running a trusted anti-virus program, sometimes they are installed on your computer.
• Understand how to your data in the event of a breach and practice the recovery methods.
• Keep your passwords safe and unique - reusing passwords is never a good idea.
• Familiarize yourself with common types and methods of malware. You can find a handy list .
• Contact your organization’s IT department whenever you see anything suspicious, just in case.

Stay safe, don’t interact with strange emails, and always update and backup if possible! Feel free to comment below any tips or advice you may have.

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Photo Credit: Ashley Moniz

Ali Mesbahian is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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On June 28, 2021, IP Osgoode hosted a panel discussion in their Bracing for Impact Webinar Series titled AI’s Dirty Footprint. Organized in collaboration with the Harry Radzyner Law School at IDC Herzliya in Israel, Microsoft Canada, and Alectra's GRE&T Centre, the central question of this webinar was: in what way can we use artificial intelligence (AI) to ensure that the negative impacts of its energy consumption do not exceed its beneficial effects for environmental sustainability?

IP Osgoode’s own Professor Giuseppina (Pina) D’Agostino opened the panel by setting the stage for the discussion and introducing the speakers.��

In his opening remarks, Dr. Amir Asif, Vice President of Research and Innovation at �첥��Ƶ, noted that AI remains a “key strategic area” for research at York. Emphasizing the need for an interdisciplinary approach, Dr. Asif also stated that exploring AI’s ethical and legal implications will require collaboration between researchers in the AI community, social sciences, and the humanities.

Indeed, “collaboration” was one common thread among all the speakers. In his first formal address since he took office, the Hon. David Piccini—Ontario Minister of the Environment, Conservation and Parks—turned not only to universities for ideas in using AI to improve the climate situation, but also to youth as part of the government’s broader environmental policy plan. The youth, he noted, must be “unapologetically engaged”. Given the , the Minister’s words are welcome if they signal any change.

The panel then proceeded to a discussion moderated by Dr. Aviv Gaon, professor at IDC Herzliya. In his introduction, Gaon brought attention to that outlines 17 internationally-agreed-upon sustainable development goals for 2030, spread across 169 targets. With respect to the environment, the study shows that AI’s potential to enable the environmental targets of these 17 goals outweighs its inhibitory effects.

The first panelist was Andrea Roszell, Director of Energy, Sustainability and Infrastructure at Guidehouse. Her discussion was centred on AI’s capabilities to increase efficiency in the energy and utility sector. In particular, she pointed to the “energy cloud”, a concept developed at Guidehouse that moves away from a “one-way flow” of power from energy centers to consumers, to a more networked, interconnected “multi-flow” dynamic. This requires an infrastructure—a neural grid—that utilizes artificial intelligence in technology, such as sensors software and monitoring systems, to create large “data sets” for utilities to access. Despite requiring increased energy consumption, Roszell stated that these data sets are a net benefit to the environment due to the new efficiency gained in management of greenhouse gases and predictive maintenance models that ultimately lead to a more sustainable and reliant energy infrastructure.

The second panelist was Dr. Audrey Lee, Senior Director of Energy Strategy at Microsoft. She started by pointing to Among other goals, Dr. Lee highlighted Microsoft’s plan to offset all of its electricity usage with renewable energy by 2025 and to be carbon negative by 2050. Lee noted, however, that the first step in achieving any such goal is to establish a proficient “measurement infrastructure” that can enable us to quantify our environmental footprint with sufficient precision—for example, data analytics that detail how and to what extent a particular utility uses electricity at each hour.

The panel then continued to its third speaker, Kapil Singhal, Co-Founder & CEO of Vyntelligence. At the very outset of his discussion, he too emphasized the need for collaboration. In particular, Singhal noted how Vyntelligence has made possible a new form collaboration between artificial intelligence and human brain power. Utilizing short videos of workflow in the field, artificial intelligence can augment workers’ awareness of a given project by revealing further areas of risk and benefit. This, when combined with human cognitive and decision-making power (which Singhal noted far exceeds what AI can learn), will yield more efficient outcomes. One such outcome is enhancing the infrastructure that allows for remote work (the importance of which is vividly felt in times of COVID-19), reducing thereby the carbon footprint of work-related travel.��

Finally, the panel featured Neetika Sathe, Vice President of the GRE&T Centre at Alectra Inc. First, she noted that as more and more people gain access to the internet, global energy consumption is bound to increase. Thus, she emphasized the need for international collaboration beyond local efforts. She further mentioned that about half of the energy used at datacentres is used to cool their servers, which brings attention to the need for more efficient infrastructures.

In closing, it is important to address that, as the panelists mentioned, data centres account for only 1-2% of global energy consumption. However, as I mentioned in , AI’s “dirty footprint” is not confined to the energy it consumes, but extends to its ability to offer services for resource extraction which, for example, is enabled by the connection and collaboration between the tech and fossil fuel industries. Any meaningful policy directed at reducing AI’s negative environmental impacts must also account for this broader perspective.

A link to watch a recording of the event can be found on IP Osgoode's page.

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What is the "Partnership on AI", and who are the Partners?

The “Partnership on AI” is a not-for-profit��platform to support best practices in the development of Artificial Intelligence.��, , , and are the founding partners. These companies are industry leaders in the development of artificial intelligence, drones, and enterprise technologies.

������’s Watson AI in recent years for its ability to research and compile relevant information at super-human speeds. Watson has the potential to fundamentally change the nature of industries reliant on intelligent research. DeepMind, Google’s AI development office, when its “learning” AI was able to beat world champions at the ancient logic game��Go. The scale of processing needed to calculate moves in Go is astronomically greater than that in chess, marking a distinct shift in the capabilities of computing since IBM's .

Why should we be concerned about AI?

These computers are examples of how computing is already capable of information processing exceeding that of humans, in some areas. Sam Harris' TED Talk argued “if intelligence is just a matter of information processing, and we continue to improve our machines, we will produce some form of superintelligence.” At the same time, he argued, we have so little understanding of how to constrain such an intelligence and “we have no idea how long it will take us” to determine that.

We should be afraid of this paradigm. Artificial intelligence, if incorrectly implemented, .��The extreme example Harris offered was that “a few trillionaires”, benefitting from the exponentially improved productivity of AI, “could grace the covers of our business magazines while the rest of the world would be free to starve”, as the result of AI eroding jobs and networks of economic exchange. The fear in this example is not that artificial intelligence would become malevolent—as has proposed it may—but, instead, that it would be so much more intelligent and capable than humans, and, by relative measure, ��intellectually, we would be to it what ants are to us.

What does the Partnership propose to do about this?

The and of the Partnership on AI respond to some of Harris’ concerns. The organization states its mission is to ensure the maintenance of, “ethics, fairness, inclusivity, transparency and interoperability, and privacy” in the development of artificial intelligence.

The organization intends to bring together experts from a broad range of fields to respond to the implications of AI in relation to economics, social science, finance, public policy, and law.

The organization’s tenets include: “to ensure that AI technologies benefit and empower as many people as possible”; “maximize the benefits and address the potential challenges of AI technologies”; and, “working to ensure that AI research and engineering communities remain socially responsible, sensitive, and engaged directly with the potential influences of AI technologies on wider society”—these suggest that this organization understands and empathizes with the concerns of Harris and others, related to AI.

What does this mean?

It remains to be seen if this organization and the oversights it vows to provide will prove sufficient to mitigate the potential threats and issues raised by Harris. Concerns are already being raised related to the and Elon Musk (of , , ) from the agreement.

��������’s Siri personal assistant and Tesla Motors’ cars are two of the highest-profile artificial intelligence applications on the market. Both companies stand poised to play a major role in the development of AI. It remains possible that these companies could join the “Partnership”, however, both Apple and Musk are known for their history of independence in the tech market. If these developers choose to remain independent, this could seriously undermine the authority of the "Partnership" and affect the ability for the AI development 'industry' to self-regulate.

It is also worthwhile to consider that the "Partnership" is rooted only in American businesses, which presents problems insofar that it does not adequately account for the emergence of new AI developers��in countries outside of the United States - China, or India, for example. As well, in an extreme case, the centralization of such AI development singularly in the United States could contribute to Cold War-esque tensions, which Harris warned his audience during his talk.

The Manhattan Project for AI?

Harris' Manhattan Project analogy is significant. The Manhattan Project brought together many of the world's greatest scientists and mathematicians to construct the atomic bomb, all with the purpose of ensuring that power did not fall in to the wrong hands - Nazi Germany - during the Second World War. For its intents and purposes, the project succeeded. The bomb was built and it was used to end the war. However, as history proved,��despite the positive intentions of the project, it ultimately contributed to further evils as the impetus for the beginning of the Cold War. Albert Einstein, who , later regretted the creation of the device.

If AI were to go the way of the atomic bomb, that is, result in disastrous consequences despite our best efforts to regulate it, this author believes that fact should be cause for concern. While the functionality of AI remains in question as developers continue to seek greater and greater cognition from their machines, this may be, as Harris argued, a critical point in our history.

Christopher McGoey is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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These are the dates that John Weigelt — the National Technology Officer for Microsoft Canada — used to provide scale in his recent IP Osgoode Speaks Series presentation: Adjusting to the Changed Frame of Reference of our Technology Enabled World.

Specifically, these dates represent "the day after". Weigelt asked attendees to imagine waking up on the day after Bell first telephoned Watson, after the Wright Brothers flew over Kitty Hawk, and after Neil Armstrong took one small step on the moon's surface. Would we have known that the world was a different place than it had been the day before or that our collective frame of reference had fundamentally shifted? Hindsight lets us recognize key moments in the development of groundbreaking technologies, but would we have realized them at the time they occurred?

Weigelt offered up a list of technologies currently being developed, improved and used that could have the same scale of impact, including: social computing, the Internet of things, white space wifi, cloud computing, machine learning, robotics, 3D printing, and virtual currencies. He took pains to ground his list beyond hype by outlining the existing practical uses for these technologies including some decidedly unsexy applications like that of machine using handwriting recognition to sort plain old snail mail or the use of robotics in manufacturing. Weigelt also imagined a world in which our household plumbing includes taps for 3D printing goop alongside the hot and cold running water or one where backhoes have giant bionic ant jaws instead of metal buckets.

Technology does not change the world without facing challenges. Weigelt discussed the security and privacy issues that have already resulted from the shift in technology. The rise of cyber crime was a significant focus for the talk, with Weigelt using the timeline of a vulnerability report in order to illustrate certain security issues.

A public release concerning a vulnerability may occur almost simultaneously with the release of a solution for the problem. However, users take weeks to update their systems, which means there remains a window of weeks for hackers to develop and deploy exploits which target unpatched systems. Once a system has been targeted and malicious software installed, patching the original exploit may be an insufficient fix. During the Q&A, Weigelt elaborated on how technology companies are approaching these problems. There is now a shift away from models that rely on users to practice good security hygiene to models like biometrics which are inherently more secure and often paired with ongoing efforts to improve screening and filtering to ensure that users aren’t arriving at malicious websites or receiving malicious email. Weigelt discussed how an open source vulnerability handling model is not necessarily sustainable, citing which had gone undetected for years, and how open-source models do not appropriately balance the need to secure IP with the need to secure systems.

Weigelt also talked about the difference between how the public perceives hacking — sophisticated programmers deploying clever bits of code that defeat even the best designed network security — and the reality of most actual hacks, which involve low-tech, easy attacks like finding computers or networks using a default password and then simply logging in. Surprisingly, simple digital hygiene practices like changing default passwords and regular security updates could stop 97% of system breaches.

The talk also raised a series of ethical and legal issues that inform the discussion around big data, ubiquitous computing and other new technologies. Evidence that might have once been located on a hard drive in a desktop computer may now be painted across multiple servers belonging to a third party and located in a shipping container. How do you seize that data as part of a criminal investigation? With masses of data constantly being collected by everything from police body cameras to always listening virtual assistants, there is an increasing focus on the legal and ethical boundaries on using that information. Who owns it? Who is allowed to use it? How long can they keep it and what can they use it for?

While Weigelt did describe some scenarios where technology companies are working with governments to solve some of these problems, he was also clear that we can’t wait on statutory solutions. Government policies are often behind the times. He then ended the talk by encouraging law students interested in practicing in the technology sector to understand risk management so they can help their clients make legally appropriate choices when faced with questions of trust and security that currently have no clear answers.

Jacquilynne Schlesier is an IPilogue Editor and JD Candidate at Osgoode Hall.

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The main issue of the dispute is concerning Microsoft’s use of the H.264 codec for video recording, compression and distribution. It is one of the most commonly used formats in the computing industry and used almost ubiquitously for all high definition video. Microsoft uses the codec in a number of the programs PC-owners use on a regular basis (such as Internet Explorer and Windows Media Player) and within its gaming system – the Xbox 360.

A Mannheim, given in late April would have the effect of instituting a ban on sales of Microsoft products such as Windows 7 and the gaming console. Currently, Motorola has been unable to institute the sales ban due to another lawsuit between the two companies that is being conducted . Not long after the German ruling, the US International Trade Commission that was also hearing the matter and has recently determined that the patents had been infringed by Microsoft. Following the decision, Judge David P. Shaw of the ITC has on the infringing products, a decision that could have huge implications on the profits of the tech giant. Microsoft still has some breathing room as the on to both the ITC board of commissioners and the Obama administration.

During the proceedings, that Motorola’s approach to licensing the codec did not follow the FRAND (fair, reasonable, and non-discriminatory) principles – guidelines that are applied in order to promote healthy and competitive markets worldwide. The nature of many products requires the use of industry-standard technologies – the patents to which must be licensed at reasonable rates to allow other companies to compete. Issues will begin to arise when the companies that own these patents begin to abuse their position.

As a result of a number of lawsuits concerning similar issues between tech companies, Jon Leibowitz – Chariman of the Federal Trade Commission, that the FTC will likely look into injunctions issued over the use of standard and essential patents. These investigations would likely relieve Microsoft in the interim of a sales ban, and would at least provide some time to deliberate with Motorola on a reasonable licensing fee for the infringed technologies. During the ITC hearing, that Microsoft should make a royalty payment which would amount to roughly $4 billion annually.

Many lawsuits have arisen in recent years due to the growing market share of smartphones and technological devices. Patent rights were developed to spur innovation, but as the tech giants like Google and RIM have padded their patent portfolios through acquisitions and mergers, the trend seems to be moving towards patents as a means to attack other companies and reduce or eliminate competition. While I hope that Motorola is not attempting to abuse their position of patent power, they should keep in mind that there is a fine line between utilizing patents to protect innovation and using them to gain an unfair advantage in business dealings.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

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When Toronto-based suspected their software patent had been infringed by Microsoft Corp., they rallied their resources and launched a lawsuit against the software giant in March 2007.�� i4i’s patent was granted in 1998 for their XML software which allowed users to manage large amounts of information by turning complex documents into accessible databases. In 2000, Microsoft approached i4i regarding their product for a high-profile customer. However, instead of licensing the technology from i4i, Microsoft incorporated the programming into their Word products (2003, 2007). It was not until August 2009 that a U.S. court ruled in i4i’s favour, granting an injunction on U.S. sales of Word 2003, 2007 and any future versions that use i4i’s technology without a licence and also a monetary award of $290 million (USD).

In a recent , the entrepreneurs behind i4i described their experience with the litigation against Microsoft and gave their advice on how entrepreneurs can better protect their intellectual property. Loudon Owen (chairman of i4i) and Michel Vulpe (founder of i4i, Chief Technology Officer, and developer of the patented software) met in a coffee shop in 1995 to form Infrastructures for Information (i4i). Even at that early stage, Michel was concerned about the intellectual property rights behind their ideas. By 1998, i4i had patented their XML technology and when Microsoft had approached them, i4i was able to fall back on their intellectual property protection.

When i4i first suspected that Microsoft had been using their invention, it was difficult for them to know for certain if their patent was infringed until they were able to compare the source code. However, the dilemma for i4i (and for all software entrepreneurs) was that the access to the source code and the certainty of infringement were not available until a lawsuit was actually put forth. Thus, there is always a large risk involved in litigating a suspected patent infringement in regards to software.

The first thing i4i did was to ensure that all of their communication and deliberation was protected under solicitor-client privilege to allow them to speak and analyze freely. The second step was to go out into the market and engage in an in-depth review of the products that might have been infringing on their invention, doing their due diligence in acquiring market information. The third step was to consult with various prospective advocates.�� i4i approached both U.S. and Canadian lawyers regarding what proof was required to bring the case, the potential costs and time requirements of such a litigation, what the key elements would be for their case, and what the expected outcomes would be. Owen noted that it was important for i4i (and in fact all prospective patent litigants) to consult various types of IP lawyers, as filing a patent and litigating a patent are very different and require different lawyers. Thus, i4i attributes much of their preparation and careful planning to the success of their litigation against Microsoft.

Owen and Vulpe also provided suggestions to entrepreneurs on how to better protect their intellectual property. In regards to patents, they advise that corporations need to first know and decide exactly what kind of business they are in. If they are in the business of providing a service and it is a fairly generic service, they are better off avoiding patent protection. The costs and complexity of patents are often significantly higher than what people may realize when contemplating patenting their product.

On the other hand, if they are in the business of making dramatic changes within an industry, they should be extremely attentive to investing in patents and other IP protection tactics (i.e. non-disclosure agreements and other strategies to deal with both small and large companies). One has to keep in mind, however, that patents are often a trade-off. The deal is that you disclose everything in exchange for a monopoly, but there are often ways for others to get around that monopoly. It is only a certain type of patent that can withstand the challenges of the courts and the U.S. Patent Office (which processes over half a million patent applications a year).

Vulpe also warned entrepreneurs that the process of acquiring patents can be a very expensive proposition and entrepreneurs must undertake that process with the belief that they will fight to enforce it, or otherwise risk losing the $50-100,000 invested in getting the patent in the first place. If entrepreneurs are unwilling to invest in the patents, they will be much better off using their money to invest in other elements of their business (e.g. more programmers, engineers, or a better marketing plan, etc.) However, if they are willing to invest in a patent, then they need to develop a proper patent strategy. This would include a patent strategy in the U.S. (even for Canadians) as it is the big market and the centre to a lot of innovation. An international patent strategy is also important to protect your invention internationally. Finally, it would also be a good idea to secure funding for the patent before starting the patent application process as it can be a very expensive endeavour, especially for smaller entrepreneurs.

All in all, Owen and Vulpe provided well rounded advice to interested entrepreneurs and laid out some of the potential pitfalls of the patent process. Their decade-plus of experience with patents and their recent win against Microsoft give hope to the small entrepreneurs that the incentives of the IP system are still accessible to the underdog if they have properly planned their strategies ahead of time.

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A patent grants the owner of��the patent the sole right to make, use, and/or sell the invention.�� By giving these rights and allowing��patent owners��to profit, patents arguably provide incentives for investing in research and being innovative.

Currently patents have temporal and geographical boundaries, which means, for instance, if a patent is obtained in the US that patent is not valid in Canada unless a patent application is also filed with the Canadian patent office and is approved. The cost of patenting a product is quite high, particularly if considering obtaining��patent protection��at global level and the process is time consuming. Gutierrez argues that a global patent system can overcome these problems and will promote innovation.

He further "in today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body. 
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A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods".

Clearly the idea of having a single global patent system is appealing to giant corporations such as Microsoft whose products are manufactured globally. Having such a system will significantly reduce cost, will save time, and will make it easier to handle infringement issues. However, to critics, Gutierrez's arguments are not convincing enough.

Gene Quinn, Patent Attorney & IPWatchdog Founder, that a global patent system will hamper local and small businesses. He argues that, "what Microsoft wants is to kill software patents so that they cease to be punished for infringing patents owned by substantially smaller businesses who had the audacity to invent first and seek a patent". It is noteworthy that Microsoft was recently�� in Texas for patent infringement regarding its Word application. Furthermore, according to another critic, Ron Katznelson, Gutierrez to explain the cause of the deficiencies in the current system and fails to address how harmonization might help. Ron Katznelson also supports Quinn's view and calls harmonization an "illusory" myth, which is "to abolish the American legal system".

Other critics have also raised their concerns regarding a global patent system; , by comparing patent harmonization to attempts to harmonize Copyright laws, states that harmonization would make it more difficult to realize the innovation process and would benefit those who "benefit most from being able to abuse such monopoly rights"; argues that such a system will make it easier for patent trolls to sue for damages; and states that Gutierrez is asking the world to adopt US patent laws.

Another criterion that concerns me is the position of developing countries.����Many in these countries do not have sufficient assets to obtain expensive patented products or to get a licence for them.�� Thus, arguably, a global patent system - unless implemented in a way to address this problem - may lower living standards and hinder research.

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