Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Intellectual Property in the WTO Volume II

Research Handbooks on the WTO series

Edited by Carlos M. Correa

This concise and detailed Handbook addresses some of the most complex issues raised by the implementation of the TRIPS Agreement globally. Among other themes, the Handbook explores the applicability of GATT jurisprudence for the interpretation of the Agreement’s provisions. It also considers key issues relating to the enforcement of intellectual property rights, such as border measures and injunctive relief. Teamed with the first volume – Research Handbook on the Protection of Intellectual Property under WTO Rules – this analysis is supplemented by a thorough review of the most important cases on TRIPS decided under the WTO dispute settlement mechanism.

Chapter 9: Canada – Patent Protection of Pharmaceutical Products

Pedro Roffe and Christoph Spennemann

Subjects: development studies, development studies, economics and finance, intellectual property, law - academic, intellectual property law, international economic law, trade law


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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