Sixth Annual Patent Colloquium

Friday, November 3, 2017 - 08:30 to 17:00
Moot Court Room, Jackman Law Building

Sixth Annual Patent Colloquium

Friday, November 3, 2017

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Download the agenda: 2017Patent-Agenda

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1. Farewell Notice of Compliance (NOC) applications. Hello NOC trials.

The Patented Medicines (Notice of Compliance) Regulations were introduced in 1993 to protect the rights of brand name pharmaceutical patent holders and to facilitate the entry of generic drugs onto the market. But these Regulations have long been criticized as being unfair to patent holders. Implementation of the Comprehensive Economic and Trade Agreement (CETA) brought changes to the PM(NOC) Regulations and the Patent Act, including the replacement of judicial review applications with full trial proceedings. This panel will discuss the substance and impact of these changes, as well as the Federal Court’s Revised Notice to the Profession on PM(NOC) proceedings.


2. Promise of the Patent and Eli Lilly: Looking Toward the Future.

The much-anticipated NAFTA Tribunal decision in the Eli Lilly dispute marked a favourable outcome for the Government of Canada. However, that tribunal decision was not the final word on either the ‘promise of the patent’ doctrine, or on Chapter 11 NAFTA arbitration. The Supreme Court of Canada, in AstraZeneca v. Apotex, will decide whether the ‘promise’ doctrine has any place in Canadian law; while the future of NAFTA arbitration remains in the hands of Chapter 11 tribunals. This panel will discuss the AstraZeneca and Eli Lilly v. Government of Canada decisions, and address the broader issue of the future of Chapter 11 disputes and their possible impact on domestic law.


3. Patents and the Competition Bureau: The New IP Enforcement Guidelines.

In an effort to update and modernize its enforcement mandate, the Competition Bureau revised its Intellectual Property Enforcement Guidelines (IPEGs) in 2016. This panel will discuss the substance of the 2016 changes as they relate to the activities of patent holders. The emerging on-the-ground impact of the revisions, as well as the status of the Competition Bureau’s ongoing annual review process, will also be addressed. Topics covered will include patent settlement agreements, patent assertion entities, product switching and standard essential patents.


 4.  Comity, Stare Decisis, and the Optimal Development of Patent Doctrine.

Patent law doctrine emerges from the ongoing dialogue between the Supreme Court, the Federal Court of Appeal and the Federal Court. But the conversation between these learned benches does not proceed on stare decisis and comity alone: it takes place within a large zone of judicial discretion and legal interpretation. Disagreements often arise, for example, about what is binding and what is merely persuasive in SCC precedent. Is it better to adopt a narrow view of SCC precedent, thereby allowing judges to build on the judicial experience of the FC and FCA? And how should the FCA resolve new issues - by interpreting ambiguous SCC dicta, or by using its considerable expertise to engage in independent analysis? The issues of comity and stare decisis also arise at the FC/FCA level. Should the FCA be more proactive in overruling its own decisions, or wait for the SCC to change the law? This panel will discuss all aspects of the debate, with an eye towards balancing the competing goals of legal certainty and growth in the common law.