The NAFTA Arbitration Tribunal in the Eli Lilly “Promise of the Patent” doctrine proceeding has issued a ruling, and it appears that the result is not a good one for Eli Lilly.
The proceeding was brought in 2013 by Eli Lilly under Chapter 11 of NAFTA, claiming damages arising from patents relating to atomoxetine (StratteraTM) and olanzapine (ZyprexaTM) that were invalidated by the Canadian courts. Eli Lilly had alleged that the interpretation of the term “useful” in Canada’s Patent Act by the Canadian courts, including the Supreme Court of Canada, between 2002 and 2008 violated Canada’s obligations under NAFTA. The Government of Canada had argued that Eli Lilly’s claims were beyond the jurisdiction of the Tribunal and were wholly without merit as a matter of both fact and law, and has requested that the claim be dismissed and that Eli Lilly be ordered to bear all of its costs in the arbitration.
Initial reports are that the Tribunal has decided in favour of the Government of Canada on the merits and has dismissed Eli Lilly’s claim. The decision has not yet been publicly released, so stay tuned as there is plenty more to follow.