Intellectual Property in the WTO Volume II
Edited by Carlos M. Correa
Chapter 9: Canada – Patent Protection of Pharmaceutical Products
Pedro Roffe and Christoph Spennemann Introduction This chapter analyses the Canada – Patent Protection of Pharmaceuticals case decided by a WTO panel chaired by Professor Robert Hudec that had the European Communities as the main complainant and Canada as respondent. The issues under discussion were in the main the compatibility of the Canadian Patent Law regarding the protection of inventions in the area of pharmaceuticals with Articles 27, 28 and 30 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). The European Communities and their Member States requested the Dispute Settlement Body (DSB), in November 1998, to establish a panel to examine these matters. The Panel was established in February 1999 and its final decision was adopted on 7 April 2000.1 The decision was not submitted to the Appellate Body for reconsideration. The decision has been characterized by commentators as being ‘the most important analysis of the TRIPS Agreement to date’,2 having ‘tremendously important consequences for public health’.3 As to the regulatory review exception – one of the main issues before the Panel – it has been highlighted that the case confirmed as ‘TRIPS-compliant’ a patent exception which is still relatively new, as compared to patent exceptions traditionally known under WTO Members’ domestic laws.4 The Panel 1 The report of the Panel is to be found in WTO document WT/DS114/R of 17 March 2000, hereinafter referred to as the Panel Report. 2 See Frederick M. Abbott (2003), ‘Bob Hudec as Chair of the CanadaGeneric Pharmaceuticals Panel – The WTO Gets Something...
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