Canada’s Updated Draft Intellectual Property Enforcement Guidelines and the Pharmaceutical Industry

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Anita Banicevic, Mark Katz, Oct 14, 2015

In June 2015, Canada’s Competition Bureau released its updated draft of the Intellectual Property Enforcement Guidelines for public review and consultation. The Draft IPEGs are intended to reflect the 2009 amendments to the Competition Act, including the changes to the criminal conspiracy provisions and the introduction of a new civil competitor collaboration provision. The Draft IPEGs are also designed to ensure consistency with other Bureau guidelines that have been released since the 2009 amendments (such as the Bureau’s Competitor Collaboration Guidelines).

The other principal objective of the Draft IPEGs is to set out the Bureau’s initial enforcement positions regarding several issues involving the nexus between competition law and intellectual property law that have attracted considerable attention recently. These include two topics that are of particular interest to the pharmaceutical industry: patent litigation settlement agreements and “product switching.”

The Bureau has addressed both of these issues in recent speeches, workshops, and a white paper but the Draft IPEGs are its first attempt to formulate enforcement principles in a systematic fashion. In this article, we describe and discuss the Bureau’s views as reflected in the Draft IPEGs as well as the practical implications for the pharmaceutical industry in Canada.