Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50879
protection and markets for innovative medicines. Herman adds general coun- sel have become involved in advocacy work on public policy around incen- tives, marketing, and risk capital too. And much of the work of general coun- sel in the business revolves around "get- ting to know who you need to know in the provincial and the federal govern- ments," says Clark. But this is not the best of times for the industry. An Ernst & Young report on the state of biotechnology world- wide paints a less-than-rosy scenario for Canada's industry. It notes the number of public companies declined signifi- cantly, to 64 in 2009 from 72 in 2008, a decline of 11 per cent. Some firms were acquired or went out of business in the economic downturn, and there were no IPOs to replenish the stock. On the private company side, the number of firms declined nine per cent to 260 in 2009 from 286 in 2008. A key survival driver for many companies was their ability to find ways of operat- ing more efficiently, a primary mantra in the current economy. The report also notes that, looking primarily at U.S. health-care reform, current legisla- tion is really about expanding access while containing costs and achieving those contradictory goals will inevita- bly require increasingly efficient ways of delivering health care. And, counsel agree, levelling regula- tory playing fields can assist in achiev- ing that aim of efficiency. But they need products protected in order to partici- pate. According to industry lobby group BIOTECanada, the country's multibil- lion-dollar bio-economy is worth more than 6.5 per cent of annual GDP and supports an employment network of more than one million jobs. To nurture that industry, there needs to be stronger patent and data protection, say Sanofi Pasteur president Mark Lievonen and Keslassy. "We need sustainable world- class intellectual property regulations," says Lievonen. In Canada, that data protection is eight years, in contrast to the United Kingdom's 10 to 11 years and the United States' 12 years. In addition, it can take up to 20 years from the granting of a patent to getting something licensed for market. Clark says that's a hugely expensive process that needs to have protections put on it so companies can recoup their costs at market. "It takes a lot of time to get it through the patent office," she says. "You can't sell it until you have regulatory approval. When you do business here, are you going to have your product protected? Is it worth it for the market?" And, all that time the clock is ticking with aggressive generic companies waiting to get the data, says Rudolph. "By the time the product gets to market, there is often little patent protection left on the prod- uct," Lievonen says. Rudolph adds patent-term restora- tion is lacking, and the legal system THE COMPLEX MINEFIELD OF IP AND TECHNOLOGY LAW REQUIRES EXPERT NAVIGATION. IP SMART & BIGGAR'S internationally recognized professionals have the technical and legal experience to help you navigate the complex, high-stakes world of IP & technology law. With offices across the country, we are able to work with you to provide and leverage the right skills, knowledge and resources to create unparalleled IP solutions tailored to your unique needs. smart-biggar.ca | Ottawa | Toronto | Montreal | Vancouver 36 • FEBRUARY 2011 Untitled-5 1 INHOUSE 12/23/09 2:36:06 PM UNPARALLELED