Morin, JF and R Gold, Six Inconvenient Truths about NAFTA Renegotiations, CIGI, July 2017 (original) (raw)
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1 Summary: Canada offers a standard level of IPR protection when assessed at a worldwide level but it is lower than that of the EU on several accounts. 1 Canada does not accept the patentability of higher life-forms, does not offer patent term extension, does not protect copyrights for 70 years after death, does not protect technological protection measures, does not offer resale rights to artists, does not have statutory provisions on internet service providers liability, has not ratified and implemented WIPO internet treaties nor UPOV 1991, has no sui generis protection for geographical indications on food products, does not offer a 10 years exclusivity for data protection, and the Canada Border Services Agency does not have the legal authority to detain on its own initiative goods suspected of infringement. It is thus assumed that CETA will lead to an upward harmonisation and call primarily for change in Canadian laws.
The Promise of the Patent in Canada and Around the World
SSRN Electronic Journal, 2000
All states require that patents be issued only for "useful" inventions. But recent decisions in Canada surrounding the invocation of the "promise of the patent" have provoked controversy both at home and internationally, with some alleging that they represent a novel and unjustified increase to the stringency of Canada's utility standard. This paper shows that these allegations are unfounded. The promise of the patent has a long history in Canadian and British patent law, and one that possesses sound policy justifications. Equally, promises are recognized and enforced under various guises by the patent law of the United States, Australia, New Zealand and the European Patent Office. The paper concludes by examining some of the open issues and unanswered questions that exist in courts' approach to promises contained in patents. * The authors were greatly assisted by comments from lawyers who act for both innovator and generic drug companies, as well as judges and academics in Canada, the United States, Europe, and Australia, some of whom, for professional reasons, preferred not to be acknowledged. In alphabetical order, the authors would like to thank
Canada’s laws on pharmaceutical intellectual property: the case for fundamental reform: Figure 1
Canadian Medical Association Journal, 2011
I nnovation-the discovery of ways to get more value from limited resources-is critically important for both society's health and material standard of living. A widely held view is that there would be too little innovation without government support. 1 This view is common in the drug discovery sector, which has faced declining productivity and mounting costs over the last three decades. 2 Governments support drug discovery and development in several ways, including direct and indirect subsidies of basic research, clinical trials and other costs associated with research and development. The most important policy interventions, however, are patents and other forms of protection for intellectual property. Patents provide innovators a period of market exclusivity, during which manufacturers of low-priced generic copies are kept at bay. This allows an innovator to earn more sales revenue than would otherwise be possible; this revenue, in turn, can help cover the costs of research and development. Patents have many limitations, 3,4 and alternative approaches to supporting drug innovation may work better. 5 Nevertheless, it appears that the patent system is not going away any time soon. So, if we are to continue to rely on patents to support drug innovation, we need a low-cost way of ensuring that market exclusivity is being sustained on the basis of valid patents; that is, patents that pass the test of novelty, utility and nonobviousness. We argue that the current system is broken. The adjudication of patent validity (and hence the period of market exclusivity) is determined by extraordinarily costly and time-consuming litigation between generic and brand (i.e., innovator) drug companies. Part of the problem stems from the very complex set of regulations and case law governing the market entry of generic drugs, which has created legal uncertainty. The primary reason, however, is that generic and brand drug companies have opposed interests: brand drug companies wish to maximize the period of market exclusivity, whereas generic drug companies wish to minimize it. Firms will use whatever tools are available to them from the regulations to pursue these goals. In this article, we describe how adaptations by these firms to Canadian regulations have generated these costs. A key policy issue is to determine what tools brand and generic drug companies should be able to use to contest market exclusivity. We propose some solutions. This article has been peer reviewed.
Global social policy, 2018
The final text of the Trans Pacific Partnership Agreement (TPP), agreed between the 12 negotiating countries in 2016, included a suite of intellectual property provisions intended to expand and extend pharmaceutical company exclusivities on medicines. It drew wide criticism for including such provisions in an agreement that involved developing countries (Vietnam, Peru, Malaysia, Mexico, Chile and Brunei Darussalam) because of the effect on delaying the introduction of low-cost generics. While developing nations negotiated transition periods for implementing some obligations, all parties would have eventually been expected to meet the same standards had the TPP come into force. While the TPP has stalled following US withdrawal, there are moves by some of the remaining countries to reinvigorate the agreement without the United States. The proponents may seek to retain as much as possible of the original text in the hope that the United States will re-join the accord in future. This ar...
Commentary: The Effect of Pharmaceutical Patent Term Length on R&D and Drug Expenditures in Canada
Healthcare policy, 2007
The authors make a useful and original contribution to evaluating the impact of strengthened patent protection of pharmaceuticals on Canadian healthcare expenditures. This commentary argues that their second task-measuring the impact of strengthened patent protection on R&D spending in Canada-faces an insurmountable conceptual problem: Corporate decisions on the location of R&D activities bear no theoretical relationship to the location of sources of R&D funding and are guided by other factors, including political considerations. Résumé Les auteurs font une contribution utile et originale à l' évaluation de l'incidence d'une protection accrue des brevets pharmaceutiques sur les dépenses en soins de santé The Effect of Pharmaceutical Patent Term Length on R&D and Drug Expenditures in Canada L' effet de la durée des brevets pharmaceutiques sur les dépenses en R&D et en médicaments au Canada