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,
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."
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
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.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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