A recent court decision is raising concerns — and potential conflicts — for Canadian military veterans and reservists who develop new technology and intellectual property after they've left the forces.
In February, a Federal Court of Appeal ruling determined that anyone whose name is on the Canadian Armed Forces' supplementary reserve list — even if he or she receives no pay or benefits — is considered a public servant.
"What it means for veterans who are on the supplementary reserve list is that their rights, with respect to things that they invent after they leave the military, are now in a bit of a state of flux," said Susan Beaubien, an intellectual property lawyer with Macera and Jarzyna in Ottawa.
It also means veterans and reservists working full time in the private sector must first seek permission from the federal government before applying for a patent for their inventions.
'It's a bit chilling'
"It's a bit chilling, because if you're in the private sector, a private sector employer is not really going to want to have to run to the government to ask for permission to file a patent application. It is a cautionary tale for others," said Beaubien.
Louis Brown, military veteran and president of NOR Environmental in North Bay, Ont., is at the centre of the case.
Brown retired from the forces in 1993 and went on to start his own company developing specialized shelters and filtration systems used in the event of a chemical or biological attack. In 1999, Brown patented his shelter technology in both Canada and the U.S.
Given his specialization in chemical defence, Brown said when he retired, he agreed to go on the supplementary reserve list. He was not paid, nor called into service, but his name remained on the list until 2009.
In the meantime, Brown said he introduced his technology to officials in the Public Works department. But in 2009, the federal government contracted a U.S. firm to supply a product similar to Brown's shelters. Claiming patent infringement, Brown took the government to court in 2012.
Still a public servant
The government moved to dismiss the case using the Public Service Invention Act, stating it already owned the patent because, technically, Brown was still a public servant when he filed for his patent in 1999.
"It does not feel good when your government attacks you because you've shown them something they know is yours and they decide to take it from you," said Brown.
The Public Servants Invention Act has been around since 1954. Beaubien, who is Brown's lawyer, said she's not aware of any cases dealing with this issue since the law was created.
"It's a very unusual and perhaps somewhat obscure statute," she said.
Many defence manufacturers hire engineers and technologists who've acquired their skills while serving in the military. Brown said he's hearing from other veterans and private sector employers who are concerned about this ruling.
'A lose, lose, lose situation'
"I think it has a huge potential for a lose, lose, lose situation," said Christyn Cianfarani, president of the Canadian Association of Defence and Security Industries which represents about a 1,000 companies in Canada's defence industry. She's been watching the case closely.
"It's going to be our veterans in theory that are going to lose," said Cianfarani. "The worry is some might already be in a catch-22 position where they have an employment contract signed with the corporation that has intellectual property clauses in it and they're now potentially compromised."
She said defence companies may be discouraged from hiring veterans or reservists, or vets may be discouraged from adding their names to the reserve list in the first place.
Cianfarani said her organization will be raising these issues with government officials and cabinet ministers, including the defence minister.
Hopes for clarity
Brown hopes the Liberal government is willing to discuss the matter and provide some clarity.
"Having your own government attack you doesn't feel very good, but I think veterans can expect better out of this new government and that's what we're hoping," said Brown.
'Having your own government attack you doesn't feel very good.' - Louis Brown
He said his company is in limbo until the questions over his patent are resolved in federal court, so in the meantime he wants to warn other veterans who are on the supplementary reserve list.
"If you're on this list you must know that anything you develop – if you do not now go and talk to the military and ask if you give permission for you to get a patent or copyright – they can come back and they can take it from you."
The Department of National Defence said in a statement to CBC that right now, it is assessing the recent court ruling, and it will work with the Justice Department to determine the next steps.
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