Co-Authors: Daphne Lainson and Nancy Pei
Originally published in the June 2020 Issue of Intellectual Property Magazine
There is a long shadow cast by compulsory licensing in Canada; so, when the government passed legislation on 25 March 2020 to introduce a new form of compulsory licensing, this caused a stir within the IP community.
The new provisions do not send us back to the 1970s and 1980s when compulsory licensing was broadly available and allowed generic drug companies to thrive in Canada. Rather, the new provisions build on existing ones that allow limited use of patented inventions for more publicly minded purposes.
The full article is in the attached PDF document and will discuss the following:
- Sections 19-19.4 of the Patent Act
- see Table 1 for Pre-Covid 19 Emergency Response Act versus Covid-19 Emergency Response Act
- Public health emergency
- Identification of patents
- Compensation
- Other authorised uses
In the extraordinary circumstances of Covid-19, encroachment on rights of patentees may seem justified. However, careful balancing of competing needs is still required. Involving patentees in the process of assessing a section 19.4 application, as was ultimately the case in 2001, would seem to be the best way to achieve that balance.