Industry Questions Canadian Courts’ Overturning Of Patents

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By Caitlin McGivern for Intellectual Property Watch

In a new blog post, Michelle Wein, research analyst with the Information Technology and Innovation Foundation, criticises a series of decisions by the Canadian courts overturning certain patents based on a re-evaluation of the usefulness criterion that a patent must meet. She argues that this trend reduces the effectiveness of the international patent system, inhibits innovation and reduces the distribution of life-saving medications.

The post, accessible here, discusses how the courts’ recent examination of the “promise doctrine” has encouraged the notion that for a patent to be valid, it must meet heightened requirements for usefulness. The promise doctrine holds that a patent must not only be useful for some purpose (the standard in the United States and Europe), but it must also deliver exactly the purpose promised in the patent filing. Wein states that this establishes “an impractical evidentiary burden,” since at the time of filing, the specific usefulness of a patent cannot be determined.

Wein argues that this precedent set by the Canadian courts will have an adverse effect not only on the intellectual property system in Canada, but around the world. She points to pharmaceutical companies’ lost sales following on from the termination of patents, and suggests that this will reduce incentive to innovate and develop new drugs, and poses a risk to patients relying on the development of new medicines.

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