Until recently, Canada was undermining an intellectual property framework that has enabled innovation to thrive for decades. Based on a judicial interpretation used nowhere else in the world, Canadian courts revoked 26 patents on innovative medicines used by millions of people suffering from cancer, osteoporosis, diabetic nerve pain and other serious conditions. Fortunately, the Canadian Supreme Court recently overturned that law, revitalizing innovation and opening the door to breakthrough medicines.
This judicial interpretation, known as the “promise doctrine,” arbitrarily required that innovators demonstrate, at the time of patent application, exactly how their product would be “useful” when brought to market—something that can only be done later in the innovation process after the product has undergone clinical trials. As a result, many existing patents were revoked, breaking promises to innovators, harming patients and threatening jobs and economies.
Researchers and developers rely on the temporary period of protection patents provide to offset the substantial resources required to develop new medicines. The “promise doctrine” eroded patent protections and undermined incentives for investment into R&D, which meant biopharmaceutical innovators were no longer able to depend on their patents to scale the substantial and risky R&D hurdle.
Worse still, the harmful consequences of weak patent protection weren’t just felt by innovators; patients were also harmed. Since the “promise doctrine” first appeared in 2005, clinical trials conducted in Canada decreased by 21 percent. With the “promise doctrine” severely diminishing incentives for research and development, patients in Canada and around the world weren’t benefitting from the new lifesaving treatments and cures that may have been brought to market if incentives were being properly protected. For patients suffering from conditions without effective therapies – such as Alzheimer’s – these clinical trials and sustained R&D are critical to spurring headwinds towards a breakthrough cure.
This obscure judicial interpretation also threatened jobs and economies on both sides of the border. As the world’s eighth largest market for brand pharmaceuticals, Canada risked their own multi-billion-dollar biopharmaceutical sector and the broader health of their economy – which had been steadily falling behind the curve. While patent applications rose steadily around the world, they dropped by 8.7 percent in Canada from 2006 – 2012, and R&D spending declined by more than 30 percent during the same period.
In June 2017, Canada’s Supreme Court overturned the “promise doctrine” to support intellectual property and innovative clinical research, demonstrating a commitment to progress and setting an example for other governments to follow suit. The decision is an important win for patients who depend on biopharmaceutical innovation and one that will allow Canada to join the rest of the world in collaborating to find tomorrow’s cures for global life-threatening diseases.