Law Times

Law Times • October 28, 2013 Page 5 NEWS Drug patents Timeline 'defies the notion of justice' extended Continued from page 1 Continued from page 1 Dattu. "What's remarkable is that any Canadian investor can bring any European country to the table to negotiate a resolution to adverse measures." He says it's a powerful tool because it overrides the legality of measures otherwise acceptable under local laws. He points to the experience of U.S.-based AbitibiBowater Inc. in Newfoundland as an example of how the provision works under NAFTA. The Newfoundland government passed legislation expropriating the company's assets after announcing it was closing a mill. AbitibiBowater sued and won a $130-million settlement under NAFTA's investorstate provisions. "For the first time, we have another agreement," says Dattu, who sees the potential for similar challenges under the EU deal. Richard Dearden, a senior litigation partner at Gowling Lafleur Henderson LLP in Ottawa who practises in areas including international trade and investor-state arbitration, finds many advantages in the agreement and says the timing is good for business. "We really needed to wean ourselves from the exports to the United States," he says. "It's not a good idea to be so beholden to one market. In this case, we found a huge market." Where there's work for business, there's also work for lawyers. Dearden sees demand for lawyers practising in a variety of fields arising out of the deal. In addition to investor-state litigation, lawyers working in procurement with provinces and municipalities, investment matters, and intellectual property could see expanded opportunities. "It's almost everything you can imagine — they've got it covered — with exceptions, of course," says Dearden, adding the exceptions are often what's of interest to lawyers. The deal will provide up to two years of additional patent protection to pharmaceutical companies in cases where there are delays in the regulatory approval process. Noel Courage, a partner with Bereskin & Parr LLP's biotechnology and pharmaceutical practice group, likens that concept to the U.S. patent extension for regulatory delays by the Food and Drug Administration. Brand-name companies will likely apply for extensions to market exclusivity where there are delays in order to extend their earnings before the drugs are open to their generic counterparts. And those generic companies might try to kill the patents instead of waiting out the extension period. "The key thing is the patentterm extension," says Courage. "If they get a year or two, that's a year or two they have market exclusivity." LT "There is no question that the transactions in question were complicated to a noncorporate lawyer and many documents were involved, as is customary with complex corporate transactions," says Smith. "However, this timeline defies the notion of justice." For Toronto lawyer Marcy Segal, who has defended lawyers as duty counsel at the law society, it appears from the ruling that the case "didn't have a leg" and the LSUC should have withdrawn its allegations. "It sounds like because of what happened with Hollinger and [Conrad] Black, the investigators wanted to cast a larger net around the various participants and in doing so almost ruined these two lawyers' reputations and exemplary careers," she says. "It also sounds like the law society was relentless and was not prepared or did not have their eyes open to sense that this hearing was not going to be successful," she adds, noting the LSUC should have thrown in the towel to avoid further financial and emotional damage. The law society could have done many things differently to make the process less drawn out and wasteful, according to Smith, who says articulating the alleged wrongdoings would have been a good place to start. His clients provided the law society with access to all documents and answers to "hundreds of specific questions," he says. "Once the investigation was complete, however, the law society did not articulate to our clients what they were alleged to have done wrong and did not give them an opportunity to respond to specific allegations (either factually or legally) before it sought approval from the law society's proceedings authorization committee to commence proceedings," says Smith. The committee appears to have granted approval, Smith adds, after it heard about information gathered from the only witness the law society called at the hearing, Hans Marschdorf. But in its ruling, the hearing panel discredited some of the evidence he gave. "Dr. Marschdorf 's task was difficult as he was asked to suggest conclusions when not all of the facts were known by him. After his testimony, further evidence showed that many of his suggestions could not be supported," wrote Simpson. The law society investigator had also suggested retaining an expert in corporate law Smith notes, "but for reasons unknown to us, this did not happen until months after the hearing started, and the person retained was withdrawn because, ironically, he himself was in a conflict of interest." There were other gaps, according to Smith, who notes the law society called no one involved in the case as a witness. "To us, this shows serious flaws in the way this matter was investigated and prosecuted," he adds. "Had the law society been less combative and adversarial, and had the process been more transparent, we could have engaged in a productive discussion that may have narrowed both the legal issues to consider as well as the areas of factual dispute. "Had the law society more fully investigated, they would have no doubt realized that some of their initial contentions could not be sustained." At the time of the decision, the law society expressed disappointment. Lisa Hall, a spokeswoman for LSUC, said the regulator agrees the case was "protracted" but noted it "carefully considers all of the information resulting from the investigation and whether a prosecution is in the public interest." LT THE SEARCH IS ON FOR CANADA'S MOST INNOVATIVE IN-HOUSE COUNSEL The 2014 Innovatio Awards is the pre-eminent award program recognizing innovation by members of the in-house bar within the Canadian legal market. These awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative, and creative in meeting the needs of their organizations. The Innovatio awards program draws on a panel of in-house counsel judges to determine the winners, based on a range of criteria. NOMINATIONS CLOSE NOVEMBER 29, 2013 To nominate in the categories listed below visit canadianlawyermag.com/innovatio-awards.html CANADIAN LAWYER INHOUSE INNOVATIO AWARD CATEGORIES: • • • • • Law department management Diversity Best practices in compliance systems In-house M&A/Dealmakers Working with external counsel • Litigation management • Risk management • Up-and-comer For more information please contact Jennifer Brown email: jen.brown@thomsonreuters.com • phone: 416-649-8867 Innovatio_LT_Oct28_13_13.indd 1 www.lawtimesnews.com 13-10-22 7:52 AM

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