The Demise of the Promise Doctrine

For a long time, Canada was a unique IP outlier for its adoption of the promise doctrine. The promise doctrine mandated that a patent must meet all of its promised uses, which is strict by international standards. There were numerous criticisms of this reality, ranging from NAFTA challenges to statements arguing it threatened research and development.

Recently, in AstraZeneca Canada Inc. v Apotex Inc.,  the Supreme Court of Canada ruled against the doctrine. AstraZeneca’s patent was deemed valid even though it did no fulfill one of its promises of variation for individual patients. The Court argued this policy is  “onerous”.

The Supreme Court’s reasoning is particularly interesting. Most focus was placed on purely legal reasoning and less on public policy.  The SCC argued the current state of affairs was “not good law” and was “incongruent” with the Patent Act. There were only passing references to research and development and international standards were solely discussed with respect to an intervener’s purpose. While the law is the major driver of courts’ decisions, public policy is also a significant driver.

It will be interesting to see what effect this decision has on the number of Canadian patents filed and granted.


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