Competition Bureau Releases "Phase II" Draft Revision Of The Intellectual Property Enforcement Guidelines

Article by D. Jeffrey Brown and Jessica Rutledge

On June 16, 2015, the Competition Bureau released an updated draft version of the Intellectual Enforcement Property Guidelines (IPEGs), which set out its approach to enforcing the Competition Act   against potentially anti-competitive practices involving intellectual property. The draft updates concentrate on the Bureau's enforcement approach in three areas, namely (a) patent litigation settlements, (b) standard-essential patents and (c) patent assertion entities. The most significant changes include the creation of a "safe harbour" for settlements of patent infringement litigation between branded and generic drug manufacturers that do not involve a reverse payment (i.e., a payment from the branded manufacturer to the alleged infringer). The draft IPEGs also signal a narrow scope of litigation settlements that may be subject to enforcement under the criminal cartel provisions of the Act.