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Wanted In Canada: Manufacturers and Suppliers to
Address COVID-19
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Powell,
Matthew D. Hulton, Wendy
G.

April
20, 2020

Industry Alerts

The COVID-19 outbreak has led to a strain on the national supply of
medical supplies, equipment, and services.  In light of this, both the
Government of Canada and provincial governments are calling on manufacturers and
suppliers for immediate assistance.

These calls to action are excellent opportunities for businesses
looking for ways to help fight the pandemic and for helping to mitigate the
economic effects of the downturn.

Government of Canada’s Call to Action

Businesses are being asked to reach out immediately if they:

Manufacture in Canada and/or have ready access to necessary inputs
through their supply chain;

Have equipment or facilities that can be quickly retooled to meet
medical needs, including for supplying PPE (Personal Protective Equipment),
sanitizers, wipes, ventilators, and other medical equipment and
supplies;

Have skilled workers who are able to respond and work in the current
circumstances; or

Can provide other assistance in the form of food services, nursing,
IT support services, and security guard services.

This call to action is not limited to Canadian businesses.

The complete list of products and services that the Government of
Canada is calling for, as well as the relevant regulatory requirements
pertaining to the products and services, can be found here.

Government of Ontario’s Call to Action

Businesses are being asked to reach out immediately if they can provide
medical supplies, such as ventilators, masks, sanitization, swabs, and
gloves.

The complete list of products the Government of Ontario is calling for
can be found here.

In order to encourage businesses to take action, the Government of
Ontario has also created the Ontario Together Fund.  The Fund has
been allocated $50 million to assist companies with retooling and otherwise
building capacity to produce medical supplies and equipment for hospitals,
longterm care homes, and other critical public services.

Other provinces, such as British Columbia and Manitoba, are making similar
requests.

Health Canada’s Regulatory Authorizations for
PPE

Health Canada – the department responsible for Canada’s federal health
policy – has now enacted a number of temporary measures for quickly evaluating
the effectiveness, quality, and safety of new products.

Suppliers and importers are being encouraged under these exceptional
circumstances to apply for authorizations to sell and import COVID-19 medical
devices which have already been authorized by foreign regulatory authorities,
despite not meeting all of Health Canada’s regulatory requirements. We have been
assisting many of our clients with efforts to pivot to respond to the
ever-growing demand for PPE.

Health Canada will also expedite the review and issuance of Medical
Device Establishment Licenses for businesses who are requesting to manufacture,
import or distribute Class I medical devices, such as gowns, masks, and face
shields in relation to COVID-19.

Having recognized that some businesses are well-positioned to provide
3D-printed medical supplies, Health Canada has also published guidance with respect to 3D printed
PPE.

Hand Sanitizers

Health Canada has created a streamlined
process for businesses intending to manufacture or distribute
alcohol-based hand sanitizers. Interested businesses will need to apply for a
product and/or site license, depending on whether the business currently
manufactures, imports, or packages such products and whether it intends to
manufacture and/or distribute alcohol-based sanitizers.

Personal Care Products

The COVID-19 pandemic has also created a significant demand for
household cleaning products which are regulated under the Canada Consumer Product
Safety Act (“CCPSA”) as well as personal
care products such as hand soaps and body soaps which are regulated as cosmetics
under the Food and Drugs
Act (FDA). To
address this demand, Health Canada has issued an interim policy to facilitate
access to these products.  The interim policy includes forgoing some
Canadian labelling requirements such as bilingual labelling.

Information for Importers

The Canada Border Services Agency (“CBSA”) has temporarily allowed for
the relief of duty and taxes for goods required for the COVID-19 emergency and
imported on behalf of the federal, provincial, or municipal entities.

As explained in Customs Notice 20-08 dated April 6, 2020,
eligible goods include those imported by, or on behalf of, public or private
care residences such as nursing homes, retirement homes, and shelters.

Customs Notice 20-12 dated March 31,
2020, can assist importers with tariff
classification of medical supplies.

Suppliers looking to import products from the United States should also
be mindful of any export restrictions on medical supplies or equipment. For more
information, Susan Benedict’s overview of the American Coronavirus Aid, Relief
and Economic Security (CARES) Act can be found here.

Intellectual Property Considerations

Having recognized that some businesses may respond to the calls to
action by copying existing products, on March 25, 2020, Canada’s Parliament
added health emergency compulsory patent licensing legislation to the
Canadian Patent Act.  Susan Benedict’s overview of the new
provisions can be found here.

We encourage anyone providing products or services for addressing the
COVID-19 emergency to contact us for guidance on the process by which compulsory
licenses can be secured and for guidance on determining who may eventually be
responsible for paying royalties under a license.

Businesses should be aware that the compulsory patent licensing
legislation applies only to the licensing of Canadian patents.  It does
not apply to the licensing of trademarks, industrial designs,
copyrights, or trade secrets.  Navigating differences between different
types of intellectual property can be a challenge, and we encourage anyone
intending to copy others’ products or services, or even intending to create new
ones, to contact us for guidance.  We have been assisting numerous clients
with intellectual property considerations as they have been pivoting their
businesses to respond to the pandemic.

We encourage anyone who is developing their own new products or
services in the fight against COVID-19 to contact us for guidance on simple
things that can be done now so that the intellectual property can enjoy
protection once things are back to normal.

Related Services

COVID-19
Developments

International/Regions

Contacts

Wendy
Hulton

Partner
Toronto

T:416-777-4035

E:[email-masked]

Matthew
Powell

Senior Patent
Agent Toronto

T:416-646-3841

E:[email-masked]

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