Summary

Canada and the EU have signed a Comprehensive Economic and Trade Agreement (CETA). The agreement includes potential changes to the Canadian
pharmaceutical industry. The most important of these changes is that brand
pharmaceutical companies will have their patents potentially extended as much
as two years. The impacts of this will chiefly be felt by Provinces struggling
to control drug costs. The Canadian Generic Pharmaceutical Association has posted a press release indicating that the duplicative process of
NOC applications followed by infringement actions will be eliminated under the
deal effectively ending dual litigation. Until the final text of the agreement
is released the actual impacts will remain difficult to predict.

The draft text also requires Canada to
comply with the Patent Law Treaty, the Geneva Act of the
Hague Agreement(Industrial Design) and the Singapore Treaty on
the Law of Trademarks and the Protocol related to the Madrid Agreement.

The PLT
imposes several requirements not currently reflected in the Patent Act. Under Article 7 of the PLT a
Contracting Party may require that an applicant, owner or other interested
person appoint a qualified representative for the purposes of any procedure
before its Office, except that an assignee of an application, an applicant,
owner or other interested person may directly
file a patent application to obtain a filing date, attend to mere payment of fees,
and other specific procedures prescribed in the Regulations. Under Article 5
(1)(a)(iii) and Article 5(2)(b) of the PLT
the description of a patent may be filed in any language.

Commentary

The requirements found in drafts of CETA to comply and
implement various international intellectual property treaties could require
significant changes to Canadian Law. Currently s. 15 of the Patent Act restricts practice before CIPO to Patent Agents. CETA requires
that Canada implement the Patent Law
Treaty. This means that in order to be in compliance Parliament will need
to amend the Patent Act to allow assignees, applicants, owners or other interested persons
to file patents in Canada, and attend to mere payment of fees (including
maintenance fees).

Another quirk of the Patent
Law Treaty is that it allows filing in any
language. Under Article 6 (3) of the PLT,
a Contracting Party may require a translation of the application into a
language accepted by its Office.

Significant reform to Canadian patent law is required
before we can be considered in compliance with the requirements of CETA (and by
extension the Patent Law Treaty). It
is important to note that these comments do not take into account other changes
that will be necessary to Canadian trade-mark law and industrial design law
based upon the Geneva Act of the Hague
Agreement, the Singapore Treaty on the Law of Trademarks, and the Protocol related to the Madrid Agreement.
Future commentary respecting these changes will be forthcoming.