Archive for the ‘Technology Law’ Category

Citizenship and Immigration Canada Announces Start-Up Visa Program

Henry Chang | February 13, 2013 in Canadian Immigration,Technology Law | Comments (0)

On January 24, 2013, Citizenship, Immigration and Multiculturalism Minister Citizen Jason Kenney (the “Immigration Minister”) announced that Citizenship and Immigration Canada (“CIC”) would launch a Start-Up Visa Program to recruit innovative immigrant entrepreneurs who will create new jobs and spur economic growth. Of course, a formal announcement relating to this program was expected for some time; I previously reported that the Immigration Minister announced consultations on the possible creation of such a program back in April 2013.

Although I have yet to be recognized for playing any role in the creation of the Start-Up Visa Program, I first raised the idea of a start-up visa directly with the Immigration Minister near the end of 2011, during a fundraiser for a local Conservative party candidate. At the time, Congress was considering the Start-Up Visa Act of 2011, which proposed a similar program for the United States. I explained that the Start-Up Visa Act of 2011 was unlikely to pass in Congress but this gave Canada a unique opportunity to attract entrepreneurs who might otherwise be destined for the United States.

Although the Immigration Minister initially thought that a start-up visa program would simply be a variation of the existing Entrepreneur Class (which is currently on hold), I explained that a “start-up” visa program would differ from existing investor and entrepreneur options to the extent that the entrepreneur would not need to be the source of investment capital. Such a program would enable entrepreneurs who establish start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada. By the end of our discussion, he warmed up to the idea and, in April 2012, the Immigration Minister formally announced consultations in connection with such a program.

The Start-Up Visa Program is a pilot program that will commence on April 1, 2013, and will run for five years. Although the most recent announcement does not mention whether there will be an annual cap, the April 2012 announcement indicated that these types of pilot programs would be limited to 2750 applications per year. If the Start-Up Visa Program proves successful during the five-year trial period, CIC may formally introduce it as a new economic class in the Immigration and Refugee Protection Regulations.

Foreign entrepreneurs seeking permanent residence under the Start-Up Visa Program will require the support of a Canadian angel investor group, venture capital fund or a business incubator before they can apply. Pursuant to agreements signed with CIC, these organizations will recommend which of their members should be designated as eligible to participate in the Start-Up Visa Program, establish expert peer review panels to assist CIC officers in case determinations, and provide assurance that industry standards of due diligence were followed.

Initially, Canada’s Venture Capital & Private Equity Association and the National Angel Capital Organization will be active partners in the Start-Up Visa Program. CIC also intends to include the Canadian Association of Business Incubation as a partner in the program at some point in the near future. The process of designating which Canadian angel investor groups and venture capital funds will be eligible to participate in the Start-Up Visa Program will begin early this year. The process of designating which Canadian business incubators will be eligible to participate in the Start-Up Visa Program will begin at a later date.

Foreign entrepreneurs will also have to meet certain criteria regarding language proficiency and educational qualifications. The full set of criteria will be published in the spring of 2013.

Guest Blog: Bilski Decision: A Missed Opportunity

Henry Chang | June 29, 2010 in Intellectual Property,Technology Law | Comments (0)

The following guest blog is provided courtesy of Bruno Soucy. He is a partner in the Corporate/Commercial, E-Commerce, Entertainment Law, Information Technology Law and Intellectual Property Law practice groups at Blaney McMurtry LLP. Bruno has represented a wide variety of Internet and other technology companies in various commercial matters. More particularly, he has negotiated and drafted agreements relating to the exploitation of technology and the conduct of business via the Internet.

Certainty is conducive to efficient markets.

The state of law in the United States with respect to business method patents (patents on methods of doing business) has been anything but clear over the past 15 years. The United States Patent and Trademark Office (“USPTO”) has been criticized, especially in the late 1990s for being lax in issuing business method patents. After some introspection, the USPTO later adopted a more restrained approach but questions persisted surrounding the validity of previously issued business method patents as well as the validity of the criteria currently (and sometimes inconsistently) used by the USPTO when reviewing patent applications for business methods. That is why there were high hopes amongst the various stakeholders that the U.S. Supreme Court would render a decision that would provide greater clarity with respect to this issue. Regrettably, the decision falls short of this.

In terms of background, Bilski and Warsaw v. Kappos involved a patent application for claims relating to a process of managing risk in commodities trading. The USPTO found that the underlying invention was not patentable subject matter and therefore denied the issuance of a patent. Bilski and Warsaw appealed the decision which was in turn affirmed by the Board of Patent Appeals and Interferences.

Bilski and Warsaw again appealed and, again, the U.S. Court of Appeals for the Federal Circuit affirmed the decision on the grounds that an invention is only patentable if: “1) it is tied to a particular machine or apparatus, or 2) it transforms a particular article into a different state or thing” and that the subject invention did not satisfy these requirements. Bilski and Warsaw then appealed the refusal to the U.S. Supreme Court.

Regrettably, the U.S. Supreme Court did not deliver the landmark decision that stakeholders on both sides of the debate were hoping for. Even though the U.S. Supreme Court affirmed the lower decisions it rejected the stricter test proposed by the U.S. Court of Appeals (machine-or-transformation test) yet failed to clearly set out the circumstances in which methods of doing business can be patented. The U.S. Supreme Court simply confirmed that business method may be patentable subject matter if they are more than abstract ideas and offered little guidance in terms of how this determination is to be made.

A few things are clear, however. The existing ambiguity surrounding business method patents remains and so does the existing business and legal challenges surrounding valuation of intellectual property assets and assessment of operational exposure. This decision indeed leaves the floor open for the continued debate between stakeholders on both sides of the issue and with it, levels of litigation should not be expected to be quelled nor related legal costs.

Perhaps the case at hand was not the proper case for such determination or perhaps this is simply confirmation that legislative intervention will be required to address this lingering issue.