Responding to U.S. tariffs requires “fighting kind with kind”

As President Trump continues to impose across-the-board tariffs on Canadian goods, some sectors in Canada are calling for greater retaliatory measures that go beyond tariffs. One such suggestion comes from McGill University’s Centre for Intellectual Property Policy, proposing that Canada “take steps that could effectively suspend patent rights in this country held by U.S.-controlled companies using Section 19 of the Patent Act.”

In a CBA National article, partner and head of Torys’ IP Litigation group Andrew Shaughnessy expressed concerns with this proposal.

One of his greatest concerns is that Section 19 has never been used before, and based on the way the legislation is written, the federal government has to seek authorization for the patent, not a private company.

The article further explains that Section 19 “allows the patent commissioner to authorize governmental use of patented inventions in extraordinary circumstances.”

However, Andrew notes that this is generally only intended for use in an emergency, such as gaining access to a pharmaceutical drug during an international health crisis.

Instead, Andrew urges that Canada should “fight kind with kind” and continue to use tariffs of our own to counter the tariffs that the United States are imposing, rather than using the Patent Act, which isn’t intended for this purpose. 

Andrew also adds that he worries about the unintended outcomes if Canada were to decide to break its word on providing intellectual protections to its trade partners.

“If this is a tool we’re going to use, he (Trump) is going to throw this back at us,” Andrew said. “And I dare say that an American patent held by a Canadian for use in the U.S. is far more valuable.”

Press Contact

Richard Coombs | Senior Manager, Marketing
416.865.3815