Amicus Curiae Submission in NAFTA Proceedings Eli Lilly v. Canada

20 Pages Posted: 2 Mar 2016 Last revised: 11 May 2020

See all articles by Henning Grosse Ruse-Khan

Henning Grosse Ruse-Khan

University of Cambridge - Faculty of Law; Max Planck Institute for Innovation and Competition

Kathleen Liddell

University of Cambridge - Faculty of Law

Michael Waibel

University of Vienna - Faculty of Law

Date Written: February 12, 2016

Abstract

This amicus brief was submitted to the NAFTA arbitral tribunal in Eli Lilly v. Canada (ICSID Case No. UNCT/14/2). The arbitration arises out of the decisions by Canadian courts to invalidate two of Eli Lilly’s pharmaceutical patents. The case involves issues of significant public interest because the tribunal’s decision is likely to impact on the legal regimes governing pharmaceutical patent protection in Canada and many other countries. Relatedly, it also bears upon international issues of access to medicines and public health. In particular, findings made in this arbitration are likely to affect, the ability and willingness of countries around the world to use the acknowledged flexibilities of the international intellectual property system, in particular under the TRIPS Agreement, for the purpose of public health and access to medicines. It will also increase the likelihood of similar investment law challenges being brought by IP owners dissatisfied by domestic courts’ decisions on the validity of their patents. This will be a new and concerning development; to date intellectual property norms have only been challenged at an international level in state-to-state proceedings.

The Brief examines, amongst other issues:

• the scope of Canada’s obligations under NAFTA Articles 1105 and its relationship with both domestic and international intellectual property laws;

• the intersection of NAFTA’s standards of protection, in particular fair and equitable treatment (FET) with Canada’s domestic patent law;

• the relationship between NAFTA Chapter 17, the TRIPs Agreement and the Patent Cooperation Treaty;

• the appropriate standard of review for judicial conduct;

• the importance of patent law flexibilities; and

• the frequency of patent invalidations.

Keywords: intellectual property rights, patents, patent invalidation, patent revocation, utility, industrial application, new medical use inventions, selection inventions, NAFTA fair and equitable treatment, FET, state responsibility for judicial conduct, legitimate expectations, TRIPs, NAFTA

JEL Classification: K11, K41, O34

Suggested Citation

Grosse Ruse-Khan, Henning and Liddell, Kathleen and Waibel, Michael, Amicus Curiae Submission in NAFTA Proceedings Eli Lilly v. Canada (February 12, 2016). University of Cambridge Faculty of Law Research Paper No. 13/2016. Available at SSRN: https://ssrn.com/abstract=2740415 or http://dx.doi.org/10.2139/ssrn.2740415

Henning Grosse Ruse-Khan (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Kathleen Liddell

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Michael Waibel

University of Vienna - Faculty of Law ( email )

Schottenbastei 10-16
Vienna, A-1010
Austria

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