Comment on the Canadian Competition Bureau's Draft Updated Intellectual Property Enforcement Guidelines

Abstract

This comment is submitted in response to the Canadian Competition Bureau’s (the Bureau’s) draft stage 2 update of its Intellectual Property Enforcement Guidelines (Draft Updated Guidelines). This comment addresses five issues in the Draft Updated Guidelines: (1) product switching in the context of pharmaceutical patents; (2) settlement of patent infringement litigation between competitors, commonly referred to as “reverse-payment settlements”; (3) deceptive failure to disclose patents essential to a standard, commonly referred to as “patent ambush”; (4) reneging on a commitment to license a standard-essential patent (SEP) on fair, reasonable, and nondiscriminatory (FRAND) terms; and (5) seeking injunctive relief against infringement of a FRAND-encumbered SEP.

Keywords: antitrust, Canadian Competition Bureau, competition, FRAND terms, injunctive relief, Intellectual Property Enforcement Guidelines, patent ambush, product switching, reverse-payment settlements, standard-essential patent, SEP

JEL Classification: K11, K21