Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 41 improve the ability of brand-name com- panies to appeal these cases. "With patent infringement you are often suing someone after they are on the market and chasing the horse after the barn door is open," says Courage. "It can dismantle the brand-name company's marketplace fairly quickly." The new rules are giving pharmaceu- tical companies two more years of patent room. "In the pharmaceutical business, the last couple of years in a patent life are usually the most valuable because it takes so long to get through the regulatory sys- tem and get approval by Health Canada, get on the market and get awareness amongst physicians," he says. Eligible drugs will include human and veterinary drugs. A maximum two years of additional patent rights for an approved drug will be available by a Supplementary Protection Certificate. The Canadian SPC system is based on the European SPC system. "It's fairly narrow what they're doing for the pharmaceutical industry, but it's something that's been done in the U.S. for years and in Europe for years, so it's part of the give and take in the CETA negotia- tions," says Courage. "It definitely makes a difference to pharmaceutical companies being able to have another couple of years of maxi- mum profit," he says. Generally, lawyers agree that when an attempt is made to streamline litiga- tion and resolve disputes quicker and less expensively, it is welcomed by the marketplace. However, Matthew Marquardt, partner with Dickinson Wright LLP in Toronto, argues that while the laws already on the books are "pretty good," they are not actually used or enforced the way they are written in the Act, making it difficult to advise clients. "I am pretty active with international clients and deal with many sets of laws. The differences stick out glaringly and it makes it difficult to advise clients," he says. He says Bill C-30 is focused on aspects of IP law that are small compared to the things Canada isn't doing already. "You wonder why we are throwing more confusion into the mix," he says. "There are variations in trademark and patent law all around the world. They have been working on harmonization since the late 1800s. But it's difficult to write a patent application for someone who works for all countries." For example, a couple of years ago, Parliament did a revamping of the Trade- marks Act and Marquardt says there are large provisions of that that have not been implemented yet. "They talked about implementing them and it's not even on anyone's radar to be implemented yet, so it's difficult to advise clients what the law is going to be," he says. Marquardt says the Intellectual Prop- erty Office needs to find a mechanism for consulting with the broader IP bar. "I think this is not helping people who may want to do business here. At some point, people are going to throw their hands up. There are lots of reasons not to come to Canada right now due to the dollar and other reasons," he says. Bright minds protecting bright ideas since 1893. Committed & accomplished members of the Canadian innovation & legal communities. Toronto • Ottawa • Mississauga ridoutmaybee.com ntitled-4 1 2016-10-31 11:13 AM

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