Thinking strategically about IP, patents, and agtech innovation

When MLT Aikins Partner Danielle Graff and Associate Nicolas Joubert were asked to provide a legal perspective on ag innovation at EMILI’s 2024 Agriculture Enlightened conference, they emphasized the importance of thinking strategically and working with experienced legal advisers.

“To me, the value that lawyers bring when we’re talking about innovation is helping organizations really think about their strategy around innovation and specifically intellectual property (IP),” Graff told the crowd of more than 260 agri-food and technology experts, industry leaders, and decision makers. “And it’s not just startups that need to think about this. It’s any organization that innovates.”

Graff recommends innovators work with a lawyer to develop a broad strategy.
Questions such as “Who are we in the market? How do we want to take this innovation to market? And who do we want to work with?” lay the groundwork for success. The earlier innovators begin exploring these questions, the better.

“We can try and help facilitate something after the fact, but of course it’s easier if you can start from the beginning,” said Graff, who leads MLT Aikins’ technology, intellectual property and privacy practice.

“We’re problem solvers,”  said Joubert who works closely with Graff at MLT Aikins and recently co-wrote part one of a blog series on IP licensing. 

“We want to work with our clients to identify the issues and the risks … and then come up with a solution that’s practical and right-sized for the organization,” he said.

The panel discussion centred around IP and patents, but Graff and Joubert emphasized that patents are just one tool in an innovator’s toolkit. 

So how important are patents in the success of digital agriculture technology?
“Patents do play an important role,” said Graff. “They show the market that you’ve got something novel, that you’ve invested in your asset and that you’ve taken steps to protect it. And this drives investment, but there are other ways to go about this.”

Other tools include copyright, trademarks, industrial designs, trade secrets, and contracts, to name a few. 

Patent protection may not always be available. To qualify for patent protection, an invention must be (i) of a patentable subject matter, (ii) novel, (iii) useful and (iv) non-obvious, as set out in legislation and regulations. Once in place, a patent in Canada gives the inventor a 20-year monopoly, but this is jurisdiction specific.

“A Canadian patent protects your invention, and only that invention, in Canada. It does not protect you in the United States or Europe, for example. You have to go and file a patent in each of those jurisdictions,” explains Joubert.

“It’s a useful tool but it’s not the only tool that can be used to protect an invention,” he said.

While IP ownership can allow companies to more easily scale their IP,  and is important for organizations looking for investment or an exit, Joubert points out that ownership is not the only solution. 

“There are so many different ways that you can commercialize IP beyond just ownership,” said Joubert, pointing to royalty arrangements based on a licensing agreement as one example. 

Joubert says it’s important to “build walls around the fortress to make sure that, if we’re going to stick with ownership, we well and truly own the thing, and that we protect it from whoever else may want access to it.”