The State of Intellectual Property in Canada: Pending and Spending - - BioPharm International


The State of Intellectual Property in Canada: Pending and Spending

BioPharm International

To touch on a few other current issues for the life sciences industry, Internet pharmacies raise a plethora of ongoing issues with consumers, innovative and generic pharmaceutical companies, pharmacists, and governments at all levels in Canada and the US. In March 2003, Canada's Competition Bureau cleared GlaxoSmithKline of allegations that it violated competition laws by refusing to supply its products to Internet pharmacies that sell them to US customers.

Another upcoming issue is Canada's implementation of the WTO's Doha Declaration11 amending both the Patent Act and the Food and Drugs Act to allow medicines to be manufactured for export to developing nations. In its desire to be the lead implementer, Canada introduced Bill C-56 on November 7, 2003 and pushed it through second reading. The Parliamentary session ended, however, effectively killing the bill. The new Prime Minister has indicated his intention to reintroduce the same bill once the new Parliament is in session.

The federal government mood also looks promising for IP protection.12-14 Industry Canada has fostered an innovation agenda since at least 2002. In a speech to the Montreal Board of Trade in the fall of 2003, Prime Minister Martin highlighted the need to build a 21st century economy driven by individual ingenuity and creativity. In addition to lauding the many successes of the life sciences industry, Martin also emphasized the need for innovation as well as the need for funding and protection.

As we move into 2004, all eyes will be on the Supreme Court when it renders the Monsanto judgment and on the federal government as it works through its innovation agenda.

References 1. Patented medicines (notice of compliance) regulations, SOR/93-133, as amended by SOR/98-166, Consolidated Regulations of Canada (in force Mar. 11, 1998). Available from URL:

2. Harvard College v. Canada (Commissioner of Patents), (2002), 21 CPR (4th) 417 (SCC), reversing (2000), 7 CPR (4th) 1 (FCA); affirming 79 CPR (3d) 98 (FCTD).

3. Patent Act. Revised Statutes of Canada, 1985, c. P-4, as amended, s.2.

4. Supra, note 2, at paras. 3-4, per Binnie J., dissenting.

5. Monsanto Canada Inc. v. Schmeiser (2002), 21 CPR (4th) 1 (F.C.A.); aff'g (201) 12 CPR (4th) 204 (F.C.T.D.); leave to appeal to SCC granted, May 8, 2003, File 29437, SCC Bulletin at 753.

6. Food and drug regulations, C.08.004.1(1), Consolidated Regulations of Canada 1978, c.870, as amended.

7. Bayer v. AG of Canada (1999), 87 CPR (3d) 293 (FCA), affirming 84 CPR (3d) 129 (FCTD).

8. Rules amending the patent rules, SOR/2003-208 (Jun. 5, 2003). Available from URL:

9. CIPO. Regulatory impact analysis statement. Canada Gazette; 2003. Available from URL:

10. CIPO. Updated master list comparing the new fee structure before and after January 1, 2004. CIPO; Nov 2003. Available from URL:

11. WTO. Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health. Decision of the General Council; 2003 Aug 30; Geneva, Switzerland.

Available from URL:

12. Achieving excellence: investing in people, knowledge and opportunity. Ottawa (Ontario): Industry Canada; 2002 Feb 12. Available from URL:$file/achieving.pdf.

13. Knowledge matters: skills and learning for Canadians. Ottawa (Ontario): Industry Canada; 2002 Feb 12. Available from URL:

14. Martin P. Building the 21st century economy. Address to the Board of Trade of Metropolitan Montreal; 2003 Sep 18; Montreal, Quebec. Available from URL:

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