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Eli Lilly v Canada: the uncomfortable liaison between intellectual property and international investment law

Lisa Diependaele, Julian Cockbain and Sigrid Sterckx

Keywords: patent revocation; intellectual property rights; NAFTA; PCT; investment law; expropriation; FET; utility

In 2012, Eli Lilly, a US pharmaceutical corporation, initiated an investor-state arbitral claim against the Canadian government after the Canadian courts invalidated two of Eli Lilly's Canadian patents, claiming that the application of the so-called ‘promise doctrine’ violates international patent law agreements. Even though this is not the first investment arbitration case in which intellectual property rights have played such a substantial role, Eli Lilly's claim against Canada illustrates an innovative attempt to employ an international investment agreement to protect IPRs, with a private actor seeking to claim compensation for the invalidation of its patents. Furthermore, it has created significant controversy over the inclusion and recognition of intellectual property rights as ‘investments’ within the scope of international investment agreements. Therefore, in this article, we examine the initial granting and revocation of Eli Lilly's patents in more detail, and discuss the critical problems arising from the possibility of private investors directly challenging domestic patent laws’ compliance with international patent agreements before international arbitral tribunals.

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