Last week, the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) released its fourth annual International IP Index. The Index, which measures the intellectual property (IP) infrastructure of 38 key global economies, offers the opportunity for countries to be measured against their peers’ approach to intellectual property.
As in previous Indexes, Canada’s IP structure was again found to be surprisingly subpar, with more in common with countries like Poland and Malaysia than traditional peers and trading partners like the United States, United Kingdom and EU nations. Canada’s low ranking is due in large part to the ongoing invalidation of biopharmaceutical patents due to its interpretation of a legal theory called the “Promise Doctrine.” In its report, the GIPC specifically speaks to Canada’s actions, stating:
“Since the early to mid-2000s, Canadian Federal Courts have issued a growing number of decisions on the basis of patent utility in relation to pharmaceutical patents. In a high percentage of these cases, courts have ruled that pharmaceutical patents were invalid, despite the fact that these medicines were found to be safe and effective by Health Canada and were being used by hundreds of thousands of Canadian patients.
The Canadian standard of utility established through this expanding case law differs from international standards embodied in TRIPS and the Patent Cooperation Treaty, and from practices of patent offices in the U.S. and EU.
The utility test is accompanied by a heightened evidentiary burden, requiring innovators to demonstrate the effectiveness of a pharmaceutical in light of the court’s subjective construed ‘promise.’ The test raises uncertainty as to how much information needs to be disclosed in patent applications, and discriminates against pharmaceutical patents.”
Canadian lawmakers should consider the Index’s findings as an opportunity to modernize their approach to IP and reflect on their position as a global economic and political leader. As it currently stands, Canada’s IP infrastructure disincentives growth, innovation and, ultimately, patient care. As Prime Minister Trudeau prepares for his summit with President Obama next month and looks for ways to spark the Canadian economy, reforming Canada’s intellectual property laws would be good first step.
Learn more about Canada’s approach to intellectual property at PatentsProtect.org – a new resource dedicated to raising awareness about Canada’s application of the “Promise Doctrine” and invalidation of dozens of patents for innovative medicines.
Related: PhRMA takes the annual opportunity to submit comments to the Office of the U.S. Trade Representative’s (USTR) Special 301 Report– a regular review of trade barriers that exist with U.S. trading partners.
Mark Grayson Mark Grayson is a former deputy vice president of public affairs at PhRMA focusing on intellectual property, trade and international issues.