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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.


When Rights Collide

Recently in Google Inc. v Equustek Solutions Inc., the Canadian Supreme Court decided that Google must be required to globally “de-index” websites that sold another company’s intellectual property in an illegal manner.

Proponents of the ruling argue this case provides a precedent for adequate protection of intellectual property rights.  Critics of the decision are worried that this case could be used as precedent, by authoritarian governments, to curtail websites’ freedom of expression and penalize dissenting websites. With more than 80% of the world lacking proper protection of free speech, according to the NGO Freedom House, this is a pertinent concern.

Both the critics’ and proponents’ arguments highlight a frequent theme; that intellectual property rights and other rights sometimes conflict. What rights should societies prioritize? Is this decision placing economic wealth above negative rights? Conversely, are critics of the decision being hyperbolic and overly focused on abstract themes?

Whatever the effects of the decision, the tension between intellectual property rights and other concerns will probably not be disappearing soon.



Google and Antitrust Laws

Recently, the European Union fined Google 2.4 billion Euros because of a breach of antitrust laws. The EU stated Google prioritized their shopping services over other companies. Google must cease this behaviour in 90 days or they will be charged even larger fines.

The regulation of Google is an interesting topic. Various countries, like Brazil and South Korea, have alleged Google has violated antitrust policies.  Additionally, there have been several other recent cases involving European regulators and Google. Such cases include requiring Google to pay taxes in Ireland.

This case demonstrates how different jurisdictions apply antitrust laws to online entities.  For example, it is uncommon for American officials to apply antitrust laws to Internet-based companies.

Regardless of varying antitrust policies around the globe, the heavy EU fine will likely impact Google for some time!

Singapore’s Makara Innovation Fund and Global IP

Recently, the government of Singapore announced the creation of the Makara Innovation Fund. This fund aims to assist Singaporean companies, with “strong intellectual property rights”, to develop, globally. This move is part of Singapore’s overall goal to become internationally recognized for being an “IP hub”. Various issues and concerns are highlighted by this decision. Firstly, Singapore’s policy comes at a time of growing economic isolationism. For example, the Singaporean government signed the now defunct Trans-Pacific Partnership, and this is another way to increase their global economic clout. Additionally, according to Bloomberg News, Singapore, currently has the third-highest rate of patent holders per million people. Already noted for intellectual property, in some regards, the above fund could be a means to further their international rankings. It will be interesting to see the outcomes of this fund and if other countries adopt similar policies.

Unpopular IP & Public Responses

Earlier this year, IBM patented an “out-of-office” email feature. This technology has existed since the late 1980s. Various activist groups and organizations were critical of the patent and the EFF referred to it as a “stupid patent of the month”. Due to public backlash, IBM donated the patent to the public.

This event highlights an important concept, that public backlash or criticism can be used to challenge unpopular or controversial intellectual property.  In 2006, Aveda dropped its Indigenous trademark, after outcry from Aboriginal rights activist groups  and GlaxoSmith Kline does not patent medicines in the Third World.

Intellectual property and IP law do not exist in a vacuum.  Both inventors and the public  should take heed of this fact.

CETA and Intellectual Property

On February 16, 2017, the European Parliament passed the Comprehensive and Economic Trade Agreement (CETA). CETA is an EU-Canadian free trade agreement that plans to eliminate more than 90% of tariffs and was passed in a time of growing economic isolationism.  It is interesting to examine CETA from an intellectual property perspective. One ground that CETA has been criticized on is that CETA will extend the terms of drug patents and critics argue this could cause drug prices to rise. This complaint is a microcosm of a more general concern with respect to intellectual property- that intellectual property provisions, in free trade agreements, frequently cause wealth concentration. It will be interesting to see if this prediction comes true or will the CETA stand true to its word to be a progressive treaty the benefits the middle class.

China Strengthening its IP Laws

The Chinese Government has recently stated it plans to strengthen its intellectual property laws. This is especially interesting in light of recent events where Michael Jordon successfully won a trademark infringement case against a Chinese company. China, as a growing economic power, has long been under criticism for ineffectively punishing IP infringement, despite being a WTO member. Intellectual property policies are usually related to more general concerns and this seems to be the case here. Recently, Chinese leader Xi defended globalism at the Davos forum, in an age of increasing economic isolationism. China might want to tell multinational corporations, we are open for business.

The Marrakesh VIP Treaty

The year is coming to a close so it is always interesting to look back at important moments in intellectual property. One particularly interesting event was the Marrakesh VIP Treaty came into force. Originally signed in June 2013, the treaty aims to improve access to books, designed for blind or visually-impaired individuals, via loosening copyright laws pertaining to said books. Currently, 79 countries have ratified the treaty.

More general concerns and controversies are highlighted by this treaty including  improving accessibility to goods while also protecting a inventor’s idea. One area where this has been especially prevalent is drug patents in the developing world. Developing countries have frequently argued for less stringent patent policies. It will be interesting to see if this treaty leads to the proliferation of other treaties that allow exceptions to IP laws to improve accessibility.

Iceland v Iceland?

This does not seem like the standard name of a case; Iceland v Iceland pertains to a British grocery store using “Iceland” as the name of their store. The Icelandic government is not pleased and is attempting to have the trademark declared invalid. Iceland’s trademark law bars corporations from registering state emblems or symbols similar to these emblems  (Trademark Act No 45/1997 Article 14(1)); this had led to Icelandic companies having difficulty marketing their food as Icelandic. So how would this case hold up in Canada? Relevant Canadian  legislation bars companies from misleading individuals as to the geographical origin of goods (Trademark Act, 7(d)(ii)) but case law states a major determinant in deciding trademark infringement, pertaining to geographical regions, is whether or not the public would believe the goods originated from that region ( T.G. Bright Co v Canada). In Canada, each party could make a strong case. This case highlights the competing claims of protecting national symbols but allowing for innovation.

Intellectual Property and the US Election

With the American election coming to an end, many people have concerns and questions about the candidates’ perspectives on various issues. One issue that should not be overlooked is intellectual property; it is, oddly, an issue where there is some common ground between the candidates. Both Clinton and Trump support withdrawing from the Trans-Pacific Partnership (TPP); the TPP addresses intellectual property. Some argue it protects inventors but critics argue it would implement excessively strict policies. For example, its rules pertaining to user-generated content are much more limiting than current Canadian law. Since the TPP does not allow derogation, the USA might not be able to amend its own intellectual property laws because the TPP is strongly based off American law. It is interesting that whatever the outcome of Tuesday’s election, intellectual property law might be affected in similar ways.