Report: Innovation for a Better Tomorrow - Closing Canada's Intellectual Property Gap in the Pharmaceutical Sector

Authors: Canadian Intellectual Property Council and Canadian Chamber of Commerce

Date: January 19, 2011

On January 19, 2011, the Canadian Intellectual Property Council ("CIPC") and the Canadian Chamber of Commerce released a report addressing the need for greater protection of intellectual property in the pharmaceutical field. Citing the importance of the pharmaceutical industry to the advancement of science and medicine, the improvement of public health, the growth of the economy and job creation, the Report suggests that Canada is lagging in global competitiveness for pharmaceutical investments. Canada currently accounts for approximately one per cent (1%) of global pharmaceutical investments.

The Report argues that without strong and predictable protection of intellectual property, research-based pharmaceutical companies will have fewer incentives to stay in Canada. In March 2010, the Conference Board of Canada gave Canada a grade of "D" for innovation.

The Report identifies three areas for possible improvement to strengthen IP protection in Canada and bring Canada in line with other jurisdictions. First, the Report cites the lack of an effective right of appeal for innovators under the Patented Medicines (Notice of Compliance) Regulations, contrasted with the automatic right of appeal for generic manufacturers.

Second, the Report highlights the difference in data protection offered by Canada compared to other jurisdictions, such as the United States and the European Union. For example, Canada does not provide data protection extension for new indications; both the US and the EU do. The Report recommends harmonizing Canada's data protection regime with that of Canada's key trading partners and competitors.

Third, the Report notes the lack of patent term restoration/extension in Canada which compensates for time lost during regulatory and governmental approvals procedures. The US, EU, Russia, Japan, Australian and Korea offer some period of patent term restoration/extension. The Report recommends implementation of a five-year patent term restoration system.