On April 2, 2014, the Competition Bureau released a draft update for public consultation of its Intellectual Property Enforcement Guidelines ("IPEGs"). These guidelines were first published in September 2000 and set out the Competition Bureau's approach to the intersection between competition law and intellectual property law. The draft update primarily addresses the fundamental changes to the Competition Act that were introduced in 2009 and 2010.
The draft update is open for consultation until June 2, 2014.
The Canadian Intellectual Property Office ("CIPO") and the Competition Bureau also announced the signing of a Memorandum of Understanding that, according to the Competition Bureau, "will assist the two [agencies] in carrying out their important roles by promoting the benefits of, and encouraging, mutual cooperation at all levels."
Background
In recent years, the Competition Bureau has taken a greater interest in matters pertaining to intellectual property law. In particular within the health sector, the pharmaceutical industry's practices of "product hopping" and "pay for delay" settlements have been flagged as raising "possible competition issues". Indeed, the Bureau held a workshop on "Antitrust Issues in the Pharmaceutical Sector" in November 2013 to discuss these matters and to solicit feedback from interested stakeholders.
The Bureau has signaled that IP enforcement issues are of growing importance on the international stage and will continue to monitor these developments to determine whether action will be required in Canada. For example, there has been much speculation on the impact of the Actavis decision in the United States on pharmaceutical patent settlement agreements in Canada, and it is widely acknowledged that the different regulatory regime in Canada must be taken into account. The Commissioner has openly questioned whether the current provisions of the Competition Act are capable of adequately addressing the potential anti-competitive effect of such agreements.
It is against this backdrop that the draft IP Enforcement Guidelines arise. However, the draft update of the IPEGs will not immediately change the enforcement approach or policy position in the IPEGs, despite the fact that the Commissioner of Competition has spoken publicly about the need for reform in this area. The more substantive changes to be made to the IPEGs will be dealt with in a "second-stage" review, which is not expected to commence until later this year.
It is important for stakeholders to provide their views on the proposals the Bureau has put forward in its revised approach to intellectual property issues, as well as indicate if there are other competition or IP issues that they believe the Bureau should address.
Norton Rose Fulbright Canada has extensive experience in dealing with competition law issues in the pharmaceutical and life sciences sector. Please contact us directly if you have any questions or comments about the public consultation process or the potential impact that the changes to the IPEGs may have on your business.
Link to draft policy:
Draft update of Intellectual Property Enforcement Guidelines
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