Biology White Papers

The Interface of Biotechnology Patents and Competition Law

• Tags:
• biology,
• canada,
• property,
• act

Overview Biotechnology patents, particularly those based on genetic information, have sparked public concerns in the United States, Europe and Canada. Part of that concern relates to ensuring the continuing ability of researchers to develop new therapeutics and diagnostics if they would be unable to obtain licences on patented material essential to such development. Another concern relates to anti-competitive effects in patent licences, which concerns are broader than just biotechnology patents.

In this paper, I have outlined the situation in which Canada finds itself today when faced with legitimate competition concerns arising from patent misuse, both generally and in the biotechnology field. There are limits on Canada’s freedom to act as a result of international agreements to which Canada is a party. Perhaps the most important of those is the North American Free Trade Agreement, which has generally been cited as the reason for the recent emasculation of the abuse provisions previously set out in the Patent Act. I have argued that, in fact, the abuse provisions in the Patent Act could be reworked to satisfy competition and essential development concerns related to biotechnology patents without violating any of the NAFTA provisions. I have also urged that the one clear way not to solve any perceived problem is to limit biotechnology patentability. To do that would make Canada less attractive to innovative biotechnology firms, which will be the major engines of scientific advance.

The paper then adumbrates the consistent ineffectiveness of Canadian competition authorities to deal with clear abuses of patent rights. This may be partly the result of a lack of understanding of the fundamentals of intellectual property law by the competition lawyers and economists. The Intellectual Property Enforcement Guidelines, published in late 2000, clearly indicate that the competition authorities will not be vigorous investigators of alleged patent abuses. And only

• 
• Did you find this white paper useful? 4 out of 6 users found this white paper useful

• Subscribe to the IT White Papers Newsletter
• White Paper RSS