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Is intellectual property "investment"? Eli Lilly V. Canada and the international intellectual property system
| Content Provider | Semantic Scholar |
|---|---|
| Author | Okediji, Ruth L. |
| Copyright Year | 2014 |
| Abstract | On September 12, 2013, Eli Lilly filed a Notice of Arbitration against Canada under the North American Free Trade Agreement (NAFTA) arbitration provisions,1 commencing the first intellectual property investment dispute filed under NAFTA. The dispute was instigated by court rulings invalidating two of Lilly’s pharmaceutical patents based on judicial interpretations of the utility requirements contained in the Canadian patent statute. The so-called “promise of the patent doctrine” requires patent applications to support the claimed inventive promise made by the applicant to satisfy the utility requirement. Lilly claims this standard is inconsistent with the utility standards of other NAFTA signatories and a departure from Canadian law at the time Lilly filed its patent applications.2 According to Lilly, the invalidation of the patents amounts to indirect expropriation of its intellectual property rights and contravenes the firm’s legitimate expectations about the treatment of its investments.3 Lilly seeks $500 million in damages, but observers have noted that compensation is not Lilly’s ultimate goal; rather, the firm seeks to compel a change in Canadian patent law, an intervention by the Parliament to limit the interpretation of the utility requirement by judges. Lilly’s chief patent counsel highlighted this ultimate goal stating, “[t]he Parliament could have stepped in and fixed Canada’s patent statutes, . . . [but] [t]o date |
| Starting Page | 1121 |
| Ending Page | 1138 |
| Page Count | 18 |
| File Format | PDF HTM / HTML |
| Volume Number | 35 |
| Alternate Webpage(s) | https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1879&context=jil&httpsredir=1&referer= |
| Alternate Webpage(s) | http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1879&context=jil |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
