SonaSonic said:
I'm being intentionally vague to avoid giving anything more than required away. I realize this obviously limits the depth of the responses everyone can provide. DAOD 3008 seems to speak to DND-owned IP rather than IP that was created by a DND employee on his own time and at his own expense.
But I will say:
- The product has nothing to do with the military (doesn't use anything related to and is not even remotely close to anything the military does or owns or uses)
- Nothing was done during military time or using military equipment
- The audience this is being marketed to is not soldiers or military contractors
These factors all seem to point to it being outside of the "vested in Her Majesty" requirements from the Public Servants Inventions Act (s. 3). However, the Act also requires:
4. (1) Every public servant who makes an invention
(a) shall inform the appropriate minister of the invention and shall provide the minister with such information and documents with respect thereto as the minister requires
Am I providing the chain of command with a copy in order to determine whether the product is vested in the Queen?
The DAOD builds off the Act and part of it deals with questions of IP ownership where DND or CF employees created it.
By virtue of you being a public servant, your invention "might" be vested in the Crown. The only way that the Crown knows whether it has a right in the invention is to examine it's elements and the circumstances under which which the invention was created. Your comments above indicate that it most probably is yours and not the Crowns but you will have to appreciate that they just won't take your word for it without a closer look at what it actually is and the circumstances under which it was created. The Act and subordinate regulations and procedures are mandatory on anyone who at the time of invention is a Public Servant and puts the onus on you to seek a review and determination.
Your information doesn't really specify who in the CoC is asking for this or how they found out etc. I'm not sure it matters but it seems to me that what is going on appears to be related to a PSIA inquiry. I tend to agree with you that being cautious is in order. Inventions are tricky things and are quite liable to being ripped off. That's why people register patents--they provide proof that the invention is novel, that it is yours and that you have a monopoly on it for a specified time. (Although on occasion patents may upon challenge to be found to be invalid) I'm suspicious by nature and tend to wonder who is seeking to actually see the invention when you apparently have not made a PSIA Report. There is a regulation under the PSIA (see here:
http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._1332/index.html) and the form of the Report is at Form 1.
Note that if after an examination the Crown decides that they have an interest you have the right to challenge that in the Federal Court which is not a cheap affair.
In my mind you would be best off to find legal help. I presume you are in Ottawa and I've worked with the Gowlings law firm there and they have a very strong Intellectual Property division. IP legal work is not cheap.
Before you go you may wish to do further research within DND as to how the required notice under the PSIA/PSIR is conducted. Neither the PSIA nor PSIR states who within DND is the appropriate office to deal with (I presume that it is the Director of Intellectual Property who is also the contact point for DAOD 3008-0 inquiries). Unfortunately I no longer have access to the DWAN and so can't help much with finding internal DND procedures and documentation -- other, currently serving, members on this site might be able to help with that or you may want to take a walk over to DIP yourself.
Usually I'm a great fan of following the CoC system but when it comes to IP issues I think you should be careful and be sure that you are following the Act, Regulation and internal DND processes to the letter and dealing only with those people who are required and authorized to deal with these matters. Once a cat is out of the bag it's hard to shove back in.
Do be very careful though. Section 11 of the PSIA makes it an offence punishable by a fine of $500.00 or six month jail for failing to follow s 4(1) or s7 of the PSIA. You want to be careful to protect your invention but you don't want to contravene the Act by failing to make the mandated disclosure requirements.
Since DIP is the DAOD inquiry contact point, I would suggest dealing with them to determine what the appropriate process within DND are for you to make your required disclosure.
:cheers:
