Law Times

PAGE 12 FOCUS Patent protection trade agreement negotiations set to get underway next month, the Canadian government is feeling the pressure to change its pharmaceutical intellectual property rights to put them on par with EU standards. Big pharmaceutical companies and their Canadian associations such as Canada's Research-Based Pharmaceuti- cal Companies (Rx&D) want to see ma- jor changes to intellectual property laws with respect to drug products. "From a Canadian perspective, this seems to go well beyond traditional trade agreement and access to market," says University of Ottawa law professor Michael Geist. "It is really an attempt by Europe to cre- ate some significant changes within the Canadian legal framework." For its part, Rx&D paid for a public opinion poll released on Sept. 13 claim- ing that Canadians "strongly support" an agreement with the EU that up- grades the country's intellectual prop- erty regime. Nanos Research conducted the poll in July and August. The survey of more than 1,200 people suggested 80 per cent of them at least partly support up- grading Canada's intellectual property rules to match those of the EU and the United States. "These results demonstrate that Ca- nadians understand the vital link be- tween strong intellectual property safe- guards and research and innovation," said Rx&D president Russell Williams in a release. "If Canada adopts an in- ternationally competitive IP regime, it will drive the creation of innovative Canada under pressure to change IP rules W BY KENNETH JACKSON For Law Times ith a fresh round of Cana- da-European Union com- prehensive economic and medicines, which are crucial for patients and for protecting our health care." On the flipside, the Canadian Ge- neric Pharmaceutical Association is ar- guing against such a change. Both associations have been issuing press releases and other information throughout the summer leading up to the October trade talks in Ottawa. Changes to Canada's drug patent sys- tem would wipe out the savings from the Ontario government's drug reforms, said Jim Keon, generic association president, in a release in June. "Canada's generic pharmaceutical manufacturers worked co-operatively with the Ontario govern- ment to implement last year's reforms. Those savings were supposed to help pre- serve and enhance Ontario's health-care system, not increase profits for brand- name drug companies based in Europe." Rx&D immediately countered with a release of its own bashing the generic association's findings. "Opponents of free trade like the CGPA continue to use misinformation and exaggeration in attempts to derail [an agreement] between Canada and the European Union," said Williams. "Stoking false fears in Canada, and particularly in On- tario, about drug costs as seen in recent reports by the CGPA will do nothing to alter the main premise of the Canadian Intellectual Property Council study and others, including a report signed by Canada and the EU." Williams, quoting the government, said a trade agreement has the potential to pump $12 billion into the Canadian economy and increase bilateral trade by more than 20 per cent. Canada and the EU hope to wrap up talks by next year. According to Colin Robertson, a senior adviser with the law firm of McKenna Long & Aldridge LLP in Washing- ton, the main arguments for matching Canada's drug industry has slipped in recent years as big companies pushed for more protection elsewhere, says Colin Robertson. Canada's laws to international stan- dards, including EU rules, are twofold. "First, to respect the rights of the cre- ator and recognize the investment that is put into the discovery, clinical trials, and bringing to market of new drugs," says Robertson, whose practice focuses on Canada-U.S. government relations. "Second, to attract investment. As you know, we have a hub in the Montreal area and to sustain these jobs and fur- ther investment, there is pressure to bring ourselves into alignment with in- ternational standards." Robertson notes the big pharmaceu- tical companies argue Canada loses out on investment because of its intellec- tual property regime. As a result, when they situate new investment or look to WHERE AUTHORITATIVE CRIMINAL LAW CONTENT COMES TOGETHER CRIMINAL SPECTRUM This online research service integrates leading authored works with the Canadian Criminal Cases decisions, a comprehensive collection of full-text reported and unreported decisions and the Weekly Criminal Bulletin case summaries. 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Based on information he has seen, he believes the EU is making con- siderable demands. He thinks the issue will come down to how badly both sides want to make a deal. At the same time, Geist notes a study done in Europe that looked at the respective benefits from an agree- ment showed some disadvantages for Canada. "When it came to looking at intellectual property, they found very few, if any, benefits for Canada. They actually found that Canada, on the IP provisions, would end up losing. So I guess where we end up depends on how badly Canada is willing to lose on the IP provisions in order to secure a deal." One area where Canada will lose, according to the generic association, involves a proposal tabled by the EU to considerably lengthen the period of market exclusivity for brand-name drugs in Canada. It claimed this would add approximately $1.2 billion annu- ally to Ontario's prescription drug bill. About $550 million would come from the Ontario government with the remaining $672 million coming out of the pockets of patients and employ- ers that sponsor drug plans for their employees, the generic association claimed. LT September 26, 2011 • Law timeS

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• International Alliance
• Tough Times
• Focus On IP/Trademark Law