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 S E P T E M B E R 2 0 1 7 49 recent high-court decisions, including Dow v. Nova and Google v. Equustek, have further strengthened intellectual property rights. The decisions are in "different areas of the law, but they're consistent in that they strengthen IP rights for patent holders." The promise doctrine "created all kinds of uncertainty with respect to the validity of patents," says Christopher Van Barr, partner and patent agent with Gowling WLG in Ottawa, whose practice focuses on life sciences and manufacturing and who acts in many parallel proceedings. In the pharma- ceutical industry, he notes, certainty is especially important when one patent may cover the formulation of a whole class of drugs, for example. "In elim- inating the promise doctrine, you have more certainty," says Van Barr. "At its core, that [SCC] decision . . . brings us back to looking at the claims, the invention and its validity" rather than at multi-page documents that may hold one or more "promises." "What's a promise? It depends on who's asking the question and who's answering it," he says. Osler's White, whose firm represents generic drug manufacturers, says he believes Canada's IP law was already robust before the SCC decision in AstraZeneca, and that given the size of the pharmaceutical industry around the world, "they weren't going to not file for patent applications in Canada. And so I'm not sure the promise doctrine was going to stop pharmas from filing . . . in Canada," although there was "no doubt that patents would be held to a dramat- ically different standard in Canada," he says. "Not having the promise doctrine . . . is one less mechanism" available in challenging the patent under 27(3) of the Patent Act, which sets out the required specifications of an invention. Van Barr sees AstraZeneca as a bal- anced decision that swings "the pendu- lum back to the middle . . . to a neutral position." In April, the Federal Court made IN ELIMINATING THE PROMISE DOCTRINE, YOU HAVE MORE CERTAINTY. AT ITS CORE, THAT [SCC] DECISION . . . BRINGS US BACK TO LOOKING AT THE CLAIMS, THE INVENTION AND ITS VALIDITY... CHRISTOPHER VAN BARR, Gowling WLG Bright minds protecting bright ideas since 1893 Ranked as one of Canada's top IP law firms in both Canadian and international surveys of in-house counsel, we understand the business of innovation and the vital role that IP plays in today's competitive, market-driven economy. ridoutmaybee.com TORONTO | OTTAWA | BURLINGTON ntitled-3 1 2017-08-15 4:09 PM

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