Meera Nair

the bad, the good and the expensive

In Posts on February 5, 2013 at 2:29 pm

A persistent cold has sidelined me for a few days; reading is the silver lining.

the bad

InfoJustice’s latest bulletin provides details of Eli Lilly’s challenge to Canada’s patenting system. Eli Lilly’s patent for Strattera, a drug used to treat ADHD, was invalidated by Canadian courts on the grounds that the drug did not live up to expectations. Eli Lilly is pressing their claim via NAFTA, which allows multinational corporations to seek compensation from Canadian taxpayers.

“Invention” is defined as “any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.”  Eli Lilly complains  that:

In a series of decisions issued since 2005, the Federal Court of Canada and the Federal Court of Appeal have created a new judicial doctrine whereby utility is assessed not by reference to the requirement in the Patent Act that an invention be “useful”, but rather against the “promise” that the courts derive from the patent specification. This nonstatutory “promise doctrine” is not applied in any other jurisdiction in the world.

If the Federal Courts do not construe a promise from the patent, the statutory requirement for utility that historically required only a “scintilla of utility” applies. However, if the Federal Courts derive a “promise” from the patent specification (for example, to treat a human disease with fewer side effects) then utility is measured against that promise, and the patentee is required to prove that it had demonstrated or soundly predicted the promised result as of the date the patent was filed (paras 37-38).

Eli Lilly insists that such a standard violates Canada’s international obligations and creates a climate of “uncertainty and unpredictability”:

A patentee cannot know how the promise will be construed by the Federal Courts. Some Justices have looked only to the claims to derive the promise, other Justices have derived a promise from statements made within the patent disclosure, while others have “implied” a promise from the nature of the disease treated by the invention (para 43).

While the company laments the seeming capriciousness of our Judges, readers are likely to understand that different drugs in different circumstances may very well entail different perspectives. The timing (beginning in 2005) is interesting, coming as it does after 2004 when our Supreme Court emphasized the importance of a case by case analysis of  questions of fair dealing v. infringement. “Uncertainty and unpredictability” are the better byproducts of an information society, far better than the certainty of poor consumer satisfaction that comes when international corporations are able to monopolize market places.

InfoJustice’s bulletin draws from Public Citizen’s Global Trade Watch which gives the full story of Eli Lilly’s “inventive interpretation” of our trade agreements and makes plain how dangerous these proceedings are in matters of overall access to medicines. Public Citizen concludes with:

The outcome of Eli Lilly’s investor-state attack under NAFTA is critical for those seeking to safeguard countries’ ability to determine the patent standards they believe serve the public interest in access to affordable medicines. It is critical not just to protect Canada’s prerogative to end patents found to not deliver promised results, but to avoid instilling other governments with fear of investor-state reprisal for similar policies to rein in medicine costs. It is critical not just so that Canadian taxpayers can ensure that the demanded $100 million goes to more worthy ends than enhancing Eli Lilly’s profit margin, but to avoid emboldening other pharmaceutical firms contemplating the launch of similar investor-state demands against other governments seeking to balance the rights of consumers and pharmaceutical firms. As the Eli Lilly case gets under way, negotiations for the TPP and its proposed expansion of the investor-state system continue. Stopping the NAFTA expansion deal presents health advocates with today’s biggest opportunity to halt the advance of the system that empowered Eli Lilly’s audacious threat.

the good

Writing for the New Yorker, Columbia law professor Tim Wu describes a fascinating story about an indie film “surreptiously shot inside of Disney World.”  Wu refutes assertions that the filming violated intellectual property rights; fair use and social commentary feature prominently in his explanation. Spoiler alert: the full plot of the story is given so if you are inclined to see a movie where “Disney World is not as simple window dressing [but transformed] into something gruesome and disturbing,” then you may not wish to read Wu’s article.

the expensive

Writing for the Globe and Mail, Frances Bula reports that TED is coming to Vancouver for 2014-2015. The Tourism Commission of British Columbia hopes that the presence of TED will further position Vancouver as an internationally recognized site of creative thinking. Tickets to TED events run at $7,500.00; I hope that some effort is made to include Vancouver’s high-school teachers in the audience — they are among the first to encourage future creators.

Update: February 7, 2013.  More on TED in Vancouver; by Mike Chisholm writing for the Vancouver Observer.

Update July 23, 2013. Glenn Moody, writing for Techdirt, gives the news that Eli Lilly is now claiming $500 million in damages from Canada.  “What’s troubling is that similar [investor-state dispute settlement] schemes are being negotiated for both TPP  and TAFTA/TTIP.  That will give corporations even more opportunities to sue nations for supposed “expropriation”, and to challenge perfectly legitimate local laws that dare to stand in the way of bigger profits.”

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