Canada's Intellectual Property Protection for Pharmaceuticals Stronger In Many Ways than EU and US
Toronto, May 30, 2011 – Canada's intellectual property system for pharmaceuticals is already stronger than that in any other industrial sector in Canada, and is in many ways stronger than pharmaceutical IP in the European Union (EU) and United States (US), according to a new report by Edward M. Iacobucci, the Osler Chair in Business Law at the University of Toronto's Faculty of Law.
The report, INNOVATION FOR A BETTER TOMORROW: A CRITIQUE, was commissioned and released today by the Canadian Generic Pharmaceutical Association (CGPA). It is available at www.canadiangenerics.ca
Canada and the EU are currently in negotiations for a comprehensive economic and trade agreement (CETA) that will affect many Canadian industries, including pharmaceuticals. In January 2011, the Canadian Intellectual Property Council (CIPC) of the Canadian Chamber of Commerce released a report asserting that Canada's IP regime "lags behind" international competitors and calling for extension of pharmaceutical intellectual property rights in Canada as part of these negotiations.
In his report, Iacobucci notes that, in Canada, brand-name pharmaceutical companies already benefit from protections that go beyond international standards, specifically: · An automatic injunction against generic competition of up to 24 months · Two rounds of patent infringement litigation on the same set of patents · No statutory incentive for generic pharmaceutical companies to challenge patents · Regulatory data protection that lasts several years longer than the international average · The ability to obtain patents on multiple aspects of a drug without any mechanism for generic companies to oppose a patent except through litigation
Iacobucci contends that, aside from its inadequate comparisons of IP provisions, the CIPC's recommendations are based on two fundamentally flawed premises that are unexplained and unsupported in the CIPC Report:
1. Failure to Acknowledge Extra Costs to Canadian Consumers: Pharmaceutical IP reflects a trade-off between innovation and access to medicine, yet the report ignores the substantial and predictable costs that will be visited on consumers and governments if Canadian pharmaceutical IP rights are further expanded.
2. Unjustified Link Between IP, Employment and R&D: Although enhancing innovation is laudable, there is no economic reason or empirical evidence that suggests that extending IP protection in Canada will meaningfully increase jobs or research and development (R&D) spending in Canada. To the contrary, pharmaceutical R&D appears to be moving toward countries having weaker IP, such as India and China.
The report notes that, despite several increases to Canadian IP, investments in R&D as a percentage of sales have for nine years been below the 10 percent threshold the brand-name drug industry committed to in 1987.
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